Constituent power and constitutionalization in Europe

摘要

In this article, I introduce a modified version of Koskenniemi's distinction between two kinds of constitutional mindsets: Kantian v. managerial. I combine this distinction with evolutionary theory, and in particular with the distinction between evolutionary and revolutionary change (which is also used in constitutional history) and the distinction between selective adaptation and normative constraints of adaptation. I apply this theoretical framework to retrace the constitutional evolution of the European Union. Following Tuori, I distinguish five evolutionary stages: The revolutionary foundation laid in the battlefields of World War II was followed by an evolution of constitutionalism that was a result of the hegemony of the managerial mindset. Nevertheless, the revolutionary foundation was not forgotten, and the growing juridification of Europe produced an increasing need for democratic legitimization. With each stage, the relation between the Kantian and the managerial mindsets is increasingly antagonistic. The opposition becomes untenable once the constitutional evolution of Europe reaches stage five of the social-welfare constitution. The present collapse seems unavoidable. If there still is a way out of "Europe entrapped" (Claus Offe), it remains an open question and one of political praxis alone.