The Passivity of Law : Competence and Constitution in the European Court of Justice

At the heart of this book, a question: what to make of the creeping competences of the EU and of the role the European Court of Justice plays in this respect? Taking the implied powers doctrine as its starting point, the hypothesis is that it shows what is ultimately at stake in the concept of legal competence: the problem of creation in law, or the relationship between constituent and constituted power. By rethinking this relationship, a new conceptual framework to make sense of creeping competences is designed. For this, the work of Maurice Merleau-Ponty is used. Tracing back the philosophical roots of creation, legal constitution is understood as constitution in passivity. This leads to a whole new interpretation of the relationship between law and politics, rule following, authority, competences and European integration. From this perspective specific chapters in the case law of the European Court of Justice are reread and the logic behind the competence creep is unmasked. new back cover copy: Europe’s constitutional journey has not been a smooth one, and a better division and definition of competence in the European Union is a key issue that needs to be addressed. How can the division of competence be made more transparent? Does there need to be a reorganization of competence? How can it be ensured that the redefined division of competence will not lead to a creeping expansion of the competence of the Union or to encroachment upon the exclusive areas of competence of the Member States and, where there is provision, regions? And how can it be ensured that the European dynamic does not come to a halt? Indeed, has the creeping expansion of the competence of the Union already come to a halt? These are the questions this book explores. The Passivity of Law: Competence and Constitution in the European Court of Justice opens with a legal account of competence creep, including the role that the European Court of Justice plays in it and a sketch of the present division of competences and the main principles regulating it. It then discusses the relationship between constituent power and constituted or constitutional power from the viewpoint of the history of constitutional history before offering an alternative theory of their relationship, known as “chiastic theory,” which is based on the philosophical investigations of Merleau-Ponty. It details how chiastic theory can be used to make sense of the Court’s role in the competence creep in general and the doctrine of implied powers in particular, and it utilizes several case studies concerning competences to sustain this claim. Aimed at researchers and practitioners in Philosophy, Phenomenology, Political Science, the Social Sciences and numerous fields of law, this monograph is a seminal work in the evolving theory and practice of EU law. Acknowledgements 5 Contents 6 Introduction 8 A Note on Methodology 11 Outline of the Book 14 Chapter-1 15 Competences and Authority in the European Legal Order 15 1.1 The Division of Competences Between Union and Member States 15 1.2 Beyond Attributed Powers: The Implied Powers Doctrine 21 1.3 Ensuring that the Law Is Observed? The Mandate of the European Court of Justice 27 1.4 Competences and Authority 32 1.5 Legal Power and Integration: Rereading the Maastricht Decision 34 1.6 Conclusion 38 Chapter-2 39 Paradigms of Constitution-Making, or Two Tales of One Dualism 39 2.1 Competence and Constitution 40 2.2 Constituent Power and the Primacy of Politics: Sieyès and His Legacy 43 2.3 Tamed Power: Constitutionalism and the Case for Limited Government 51 2.4 Law, State and Democracy: Rereading the Schmitt-Kelsen Debate 57 2.5 The Dualistic View and the Competence Creep 67 2.6 Conclusion 69 Chapter-3 70 Rethinking Constituent Power: A Chiastic Alternative 70 3.1 Constituent Power: An Ontology of Creation 71 3.2 Expression: Creation as Metamorphosis 74 3.3 Expression and Historicity 82 3.4 Constitution and Being in the World 85 3.5 Chiastic Constitution in Politics and Law 89 3.6 Conclusion 95 Chapter-4 97 Embodying the Rule: The Passivity of Constitution 97 4.1 Auto-Institution and Rule-Following 98 4.2 “How to Take the Next Step”: Rereading Wittgenstein 102 4.3 Following the Trail: Perception in Art 105 4.4 Perception and Rule-Following: The Embodied Subject of Constitution 114 4.5 Rules and Customs: The Furrows of the World 121 4.6 Conclusion 125 Chapter-5 127 Constituting Competence: The Court of Justice and the European Legal Order 127 5.1 Situating the European Court of Justice: Preliminary Ruling and Acte Clair 128 5.2 ‘Federal Common Law’ and the Conundrum of Implication Solved 138 5.3 Making European Public Law: A Story of Effectiveness and Loyalty 146 5.4 The Commonality of Traditions: A Court in Search of Human Rights 152 5.5 Constitutionalising Integration: Constitutional Charter, Constitutional Court 156 5.6 Conclusion 164 Bibliography 172 Table of Cases 179 A. European Court of Justice 179 B. Other courts 180 Documents 181 "Europe's constitutional journey has not been a smooth one, and a better division and definition of competence in the European Union is a key issue that needs to be addressed. How can the division of competence be made more transparent? Should there be a reorganization of competence? How can it be ensured that the redefined division of competence will not lead to a creeping expansion of the competence of the Union or to encroachment upon the exclusive areas of competence of the Member States and regions? And how can it be ensured that the European dynamic does not come to a halt? Indeed, has the creeping expansion of the competence of the Union already come to a halt? These are the legal and political questions this book takes as its starting point for an in-depth exploration of the philosophical foundations of European constitutionalism. The Passivity of Law: Competence and Constitution in the European Court of Justice opens with a legal account of the competence creep, including the role that the European Court of Justice plays in it and a sketch of the present division of competences and the main principles regulating it. It then discusses the relationship between constituent power and constituted or constitutional power from the viewpoint of the history of constitutional theory before offering an alternative interpretation of their relationship, the 'chiastic theory, ' which is based on the philosophical investigations of M. Merleau-Ponty. It details how this chiastic approach can be used to make sense of the Court's role in the competence creep in general and the doctrine of implied powers in particular, and it utilizes several case studies concerning competences to sustain this claim. Aimed at researchers and practitioners in Philosophy, Phenomenology, Political Science, the Social Sciences and numerous fields of law, this monograph is a seminal work in the evolving theory and practice of EU (constitutional) law"--Provided by publisher Europe’s constitutional journey has not been a smooth one, and a better division and definition of competence in the European Union is a key issue that needs to be addressed. How can the division of competence be made more transparent? Should there be a reorganization of competence? How can it be ensured that the redefined division of competence will not lead to a creeping expansion of the competence of the Union or to encroachment upon the exclusive areas of competence of the Member States and regions? And how can it be ensured that the European dynamic does not come to a halt? Indeed, has the creeping expansion of the competence of the Union already come to a halt? These are the legal and political questions this book takes as its starting point for an in-depth exploration of the philosophical foundations of European constitutionalism. __The Passivity of Law: Competence and Constitution in the European Court of Justice__ opens with a legal account of the competence creep, including the role that the European Court of Justice plays in it and a sketch of the present division of competences and the main principles regulating it. It then discusses the relationship between constituent power and constituted or constitutional power from the viewpoint of the history of constitutional theory before offering an alternative interpretation of their relationship, the “chiastic theory,” which is based on the philosophical investigations of M. Merleau-Ponty. It details how this chiastic approach can be used to make sense of the Court’s role in the competence creep in general and the doctrine of implied powers in particular, and it utilizes several case studies concerning competences to sustain this claim. Aimed at researchers and practitioners in Philosophy, Phenomenology, Political Science, the Social Sciences and numerous fields of law, this monograph is a seminal work in the evolving theory and practice of EU (constitutional) law. Front Matter....Pages 1-1 Competences and Authority in the European Legal Order....Pages 1-24 Paradigms of Constitution-Making, or Two Tales of One Dualism....Pages 25-55 Rethinking Constituent Power: A Chiastic Alternative....Pages 57-83 Embodying the Rule: The Passivity of Constitution....Pages 85-114 Constituting Competence: The Court of Justice and the European Legal Order....Pages 115-152 Back Matter....Pages 152-152