Constitutionalism has become a byword for legitimate government, but is it fated to lose its relevance as constitutional states relinquish power to international institutions? This book evaluates the extent to which constitutionalism, as an empirical idea and normative ideal, can be adapted to institutions beyond the state by surveying the sophisticated legal and political system of the European Union. Having originated in a series of agreements between states, the EU has acquired important constitutional features like judicial review, protections for individual rights, and a hierarchy of norms. Nonetheless, it confounds traditional models of constitutional rule to the extent that its claim to authority rests on the promise of economic prosperity and technocratic competence rather than on the democratic will of citizens.
Critically appraising the European Union and its legal system, this book proposes the idea of 'functional constitutionalism' to describe this distinctive configuration of public power. Although the EU is the most advanced instance of functional constitutionalism to date, understanding this pragmatic mode of constitutional authority is essential for assessing contemporary international economic governance.
Does it make sense to talk of constitutionalism beyond the state or is it an abuse of the term constitutionalism that risks both overestimating the developments taking place at EU level and underestimating a possible negative impact on constitutionalism within states? This is a crucial question for constitutionalism and the organization of political power in Europe in the 21st century. Turkuler Isiksel's book provides an engaging, innovative, and informed answer to
this question. An answer that, while critically analyzing the European Union, rethinks constitutional theory. * Miguel Poiares Maduro, Professor of European Law, European University Institute *
This outstanding empirical and normative explication of the functional constitutionalism of the EU, along with its glaring lack of democratic legitimacy, teaches us how to think critically and creatively about constitutionalism beyond the state in a new way: that is, by reflexively readjusting the traditional languages of constitutionalism to the new circumstances while also sharpening their critical edge. * James Tully, Distinguished Professor Emeritus, University of Victoria *
Amidst all of the crisis talk in Europe, Isiksel's ambitious and profound book provides a bracing dose of sanity. Isiksel takes the long view on European integration by reminding us of what it has been all along a political program for achieving a single market across Europe, using economic integration to bring peace and prosperity. As Isiksel shows, the EU cannot suddenly become a democratic political community with a more universalistic sense of rights, given its
past. Europe's Functional Constitution is a sobering assessment of the reality of the EU and therefore of its realistic promise. * Kim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs, Princeton University *
This conceptually rich and elegantly written book makes two important contributions at once: in contrast with the wishful thinking of many normative political theorists, Isiksel demonstrates that the EU's basic legal structure remains determined by the goal of effectively governing an economic union. She also develops a sophisticated theory of functional constitutionalism which should be of interest to legal scholars and social scientists more broadly. * Jan-Werner Muller, Professor of Politics, Princeton University *
Introduction: Constitutionalism Beyond the State: Assessing the Stakes
1: The Trilemma of Constitutional Authority
2: The Theory of Functional Constitutionalism
3: Market Freedoms and Human Rights
4: Law, Democracy, and Citizenship in the European Union
5: Free Movement: A Citizenship of Aliens
6: The Non-discrimination Principle: Unbounding the State
Conclusion: The EU Without Illusions