Cosmopolitan constitutionalism: pie-in-the sky or path to
the future?
John Erik Fossum and Agustín José Menéndez
1 Introduction
Cosmopolitanism has had a long career as a political theory, and as a programme of political
action, from the early accounts of the Sophists1 and the most articulated Roman political
thinkers,2 to Immanuel Kant’s perpetual peace project3 and the European Resistance’s drive to
European and world federalism.4 Diogenes’ claim that he was a “citizen of the world”5 still
resonates loud and clear, both as a practical and as a theoretical claim. Cosmopolitanism’s
normative urge is indeed to transcend the artificial bounds of narrow political communities; or
what is the same, to challenge and unmask the fake distinction between us (the Athenians, the
Greeks, the Romans, the civilised) and them (always the barbarians). Cosmopolitanism
requires us to challenge all forms of exclusion that are based on power, not reason. And
whereas the normative power inherent in the cosmopolitan idea has not escaped oppressors –
of all forms and stripes – cosmopolitanism’s very history underlines that however well-built,
however fortified, no wall, no iron chains, no matter how well clothed in roses, can keep
people locked-in. Openness and transcendence – across time and space – are intrinsic to
cosmopolitanism; there is a natural onus on inclusion. The true realisation of the principle of
equality calls for an openness to make the polis as inclusive as is the circle of those affected
by the decisions that the community takes.6 The cosmopolitan horizon is thus the ultimate
horizon of the democratic polity.
1
Plato, Protagoras (337c-e; 1976, 30) refers the famous claim by the elitist and conservative
Hippias: Gentlemen present … I regard you all as kinsmen, familiars, and fellow-citizens —
by nature and not by convention; for like is by nature akin to like, while convention, which is
a tyrant over human beings, forces many things contrary to nature. In the wake of the sophists,
the cynic Diogenes coined the term citizen of the world. Or so says Diogenes Laertius (1925,
p. 65, corresponding to chapter VI, paragraph 63 of the second volume): “Asked where he
came from, he answered: ‘I am a citizen of the world’”. See among others, Coulmas (1995, pp.
49-50).
2
Especially in the last days of the Republic and the early days of the Roman Empire. See
Cicero (1913); Heater (2002, pp. 47-51); for a critical approach, see Wood (1992).
3
Towards Perpetual Peace is now chapter 5 of Kant (1991). See also Bohman and LutzBachmann (1997), very especially Habermas’ contribution.
4
See Il Manifesto di Ventotene and other writings by Altiero Spinelli, in Spinelli (2007). See
also the revealing insights of Hannah Arendt in Arendt (1961) and (1968).
5
For Diogenes’s famous claim, see references in fn 1.
6
Kant (1991, chapter 5), Rousseau (2008). The latter contains a critically reconstructed
version of Rousseau’s fragmentary writings on the law of war, which were known and
1
Social science and legal scholarship have played a vital role in rendering explicit what
cosmopolitanism entails in critical terms. In particular, there are compelling accounts of
cosmopolitanism as the best antidote to the “national polity bias” in social, political, and legal
scholarship. Or what is the same, of the crafting of the analytical and theoretical tools that
uncover the many implicit choices and biases inherent in the uncritical embrace of the nationstate as the obvious point of departure for research. ‘Methodological nationalism’, or the
nation-state bias, is one of the most obvious and widespread biases today.7 By challenging the
dominium of the nation-state, and the attendant taking for granted of the nation-state frame,
cosmopolitanism can help us to devise analytical tools that make sense of the social and the
political without pre-supposing a pre-ordained answer on how to organise the polity, and how
different polities should relate to each other.
While the critical, negative contribution of cosmopolitanism is outstanding, it is less obvious
what it has on offer in more constructive, positive terms.8 What concrete positive difference
does cosmopolitanism make to organised political life? Or to put it in very concrete terms,
when addressing fundamental constitutional questions, and seeking to resolve fundamental
constitutional conflicts, what constitutional theory, i.e. what robust and empirically-grounded
public philosophy capable of solving fundamental constitutional problems comes out of the
normative ideal of cosmopolitanism? Is there any such theory that cosmopolitanism can
credibly and readily resort to? We would posit that only an affirmative answer to that question
will enable us to defend cosmopolitanism as more than a normative horizon, a utopian
regulatory ideal (the pie in the sky of the title of this chapter). A viable cosmopolitan
constitutional theory is important in making the transition from utopian dream to actionable
reality: such a theory is necessary to ensure that developments that conduce to
cosmopolitanism are actually picked up and understood as cosmopolitan. 9
Today, the most obvious case for the attempt to flesh out a more concrete empirically
grounded theory of constitutional cosmopolitanism is the European Union. Many of the actual
attempts at developing a cosmopolitan vision of democratic government, and a companion
published before, but in a fashion that rendered them rather incomprehensible. For a partial
English translation, see Rousseau (2012).
7
The problem has been cogently stated as follows: “the social-scientific stance is rooted in the
concept of nation state. A nation state outlook on society and politics, law and justice and
history governs the sociological imagination. To some extent, much of social science is a
prisoner of the nation state.”(Beck 2003, p. 454; see also Wimmer and Glick-Schiller 2002).
Cosmopolitanism is posited as the best way of escaping from this confining epistemological
bias (for instance, through methodological cosmopolitanism, cf. Beck 2006; Beck and
Sznaider 2006), and as the best way of conceptualizing the nature and effects of the changes
wrought by globalization.
8
There are also quite different readings of what precisely cosmopolitanism is. For a brief
selection of recent sources, consider Delanty (2009); Holton (2009); Kendall, Woodward and
Skrbis (2009); Turner (2008).
9
Theory has action-generating implications in that it not only improves understanding but
also helps to channel and propel action in the desired direction.
2
cosmopolitan constitutional theory have then also set their sights on the European Union. For
obvious reasons. The European Union has a self-proclaimed democratic vocation: It claims to
be the world’s first attempt at establishing a supranational democracy, to the extent that it
wants to be a constitutional democracy, but following a path and leading to a destination that
is clearly different from that of the nation-state.10 It holds the promise of escaping the
trappings of nationalism, and with it establishing the foundations for a new rooted
cosmopolitanism.11 But did it? And does it keep on doing it?
In this chapter, we proceed by considering the two main directions of European
“cosmopolitan” constitutional theorizing: radical cosmopolitanism and cosmopolitanised
democratic constitutionalism.12 We spell out their key theoretical assumptions, core concepts,
and depictions of the European Union, including how they understand the foundations of the
legitimacy of the European Union and the foundations of European Union law, as well as the
relationship between supranational and national law. We also subject them to a double test:
the test of empirical fit (the extent to which it offers a plausible reconstruction of the historical
constitutional path and present constitutional configuration of the European Union) and the
test of normative soundness (the extent to which the theory resonates with the normative ideal
of equality and inclusion at the core of the cosmopolitan ideal).
The first direction takes as its point of departure that the EU is an entity sui generis that aims
at becoming a regional-cosmopolitan order. The basic theoretical assumption that propels the
theory is state transformation or withering. The sheer magnitude of change compels us either
to abandon, or at least to reconsider systematically, all three key categories of political order:
sovereignty, state and constitution, in order to understand the European experience. The
theoretical undertaking – the attendant cosmopolitan constitutional theory – must incorporate
this momentous change. Consequently, the EU’s public law must be constructed by means of
new and original concepts and categories, ones that have not been entrapped in the
nationalistically tinged categories of traditional constitutional law. That paves the way for
10
At the same time, as Rainer Schmalz-Bruns has so well reminded us, we need to exercise
due caution when taking the EU as the source of inspiration for the development of a viable
cosmopolitan constitutionalism. On the one hand there is the democratic problem of ensuring
that “democratic procedures … allow for the determination of the self of self-legislation,
and … generate the means by which a decentered and pluralised democratic self can
nonetheless reflexively act upon itself and its future shape.”(Schmalz-Bruns 2010, p. 88) On
the other is how this may be institutionalised, which also brings up the question of what
normative salience can be attributed to institutional arrangements. This issue is addressed in
Schmalz-Bruns (2005, 2010).
11
Kymlicka and Walker define rooted cosmopolitanism as an attempt “to maintain the
commitment to moral cosmopolitanism, while revising earlier commitments to a world state
or a common global culture, and affirming instead the enduring reality and value of cultural
diversity and local and national self-government.”(2012, p.3)
12
There are many other proposals and theories but these two typify the two main directions in
constitutional cosmopolitan thought on the EU. For other proposals consider Archibugi
(2008); for an account that draws on but modifies that of Habermas see Eriksen (2009).
3
new and different forms of political order and governing, notably those of multilevel
governance.
The second direction seeks to steer a middle course by adopting new and adapting established
political and constitutional conceptions and is closely linked to the impressive contributions
of Jürgen Habermas. He rightly sees in the post-war a cosmopolitan opening and argues that
the best way of entrenching that is to reformulate the Kantian position on cosmopolitanism to
fit with today’s reality. The European Union is an obvious cosmopolitanising vehicle and has
an important role in promoting and underpinning cosmopolitanism at the global level.
We claim that both are inadequate. They are either highly incomplete constitutional theories
that subvert the egalitarian drive of cosmopolitanism, and turn the shift from polis to
cosmopolis into an exercise in de-politicisation (from polis to cosmos without politics), which
cannot but benefit the elites, and may inadvertently turn cosmopolitanism into a regressive
political theory (to quote Rousseau again, the roses that clothe the iron chains). Or they resort
to as-if retrospective historicising when depicting the EU’s constitutional founding.
In response, we argue that a proper cosmopolitan constitutional theory of European
integration has to take more seriously the actual contours of the European experience. It posits
that the European Union can be construed as an attempt at establishing a democratic
constitutional framework for integration through constitutional law (what we refer to here as
the constitutional synthesis alternative). The European experience at least had the potential to
give rise to a distinct form of democratic constitutionalism that does not require us to rethink
our basic constitutional vocabulary or standards, but rather the manner in which these can be
embedded in political-legal form. Present developments may well have undermined that
potential; but the very history of European integration proves that cosmopolitanism does not
need to be a pie in the sky. A key tenet here is that a measure of stateness is required for a
viable democratic constitutionalism; that applies throughout the different levels of any
complex cosmopolitan construct (global level, regional level, state level).
2 Unpacking cosmopolitanism
2.1 Radical European cosmopolitanism
By “radical European cosmopolitanism” we refer to the constitutional theories of European
Union law that claim that the post-national character of the European Union and its law
require its constitutional theory to be radically different from that of nation-states, even of
democratic nation-states. The argument is that the world is changing and that democratic
constitutional theory has been devised in a nation-state-based context and is so imbued with
nation-state organisational and communal presuppositions that it is ill-suited to caption
present reality. Thus, adapting existing democratic constitutional theory to the European
Union will not do; doing so would unavoidably result in forcing upon the European Union
4
institutional, procedural and decision-making structures and procedures that are not only illsuited for a post-national political community but that also fail to tap its normative potentials.
That is why it is absolutely necessary to develop a new and a more appropriate conceptual
framework and theory to assess, reconstruct and develop European Union law. Only then will
we transcend the national bias that underlies actually existing democratic constitutional
theory.
The post-national character of the European Union is thus a spur (and a licence) to innovate.
This is so because the basic insight at work is that the European Union is a thoroughly new
breed of political community. The European Union is not only different from existing
Member States; it is unique because entirely unprecedented; entirely different from all
Member States. The main point is not only that the EU is unique, but rather that it is one of its
kind (Fossum 2006). It is this radical novelty, this radical transcendence of the nation-state as
a political form, the complete post-national character of the European Union that makes it a
promising project for the realisation of the normative ideal of cosmopolitanism.
The core set of radical cosmopolitan theories of European integration are those developed in
the last twenty to twenty five years under the heading of “governance”.
“Governance” is however a highly ambivalent and clearly ‘overstretched’13 term.14
Nevertheless, governance comes with certain presuppositions pertaining to polity form,
patterns of authority and social organising that form building-blocks in every effort to turn it
into a constitutional theory. Governance refers to a distinct pattern of social organising
(horizontal rather than vertical), a means of social integration (soft-law, guidelines, codes of
conduct in lieu of hard law) and an approach to conflict-handling (deliberation instead of
hierarchical adjudication).
Governance’s basic transnational premise comes with a clear cosmopolitan tenet: Macropolitical structures of governing normally associated with states have undergone such
profound changes that new political-legal configurations have arisen. With these new
configurations novel and alternative ways of handling problems and of resolving political
13
For the notion of concept-stretching, see Sartori (1970).
The term is far from new, at least in a good deal of European languages; but not much can
be learnt from its etymology and historical uses, as these essentially differ in different
languages, and at any rate, it is relatively safe to say that what really matters is how the use
started to be picked up in the 1960s and 1970s, with a view to either find a term that was not
widely used and that could be wider and less “state” laden than “government”, so as to refer
to institutional structures and decision-making processes that ensured the actual integration of
human societies, or to actively find a means of social integration as a radical alternative to
government, whether the normative motivation was a communitarian critique of “liberal
societies” or a neoliberal rejection of the “heteronomous” character of any form of
government, especially the kind of government associated with the Social and Democratic
Rechtsstaat.
14
5
conflicts have emerged.15 In many cases that is due to political or social accidents, deadlocks
and non-decisions, further spurred by constitutional and institutional evolution (of which,
quite obviously, so many have occurred in the process of European integration). Today, these
structures span across boundaries; the boundaries are far more porous; and the actors are less
tied to, as well as less dependent on, territory. Indeed governance is above all transnational,
marked by a proliferation of organisations (other than states or quasi-states) where no single
organising principle dominates.
Governance is a mode of steering or action coordination that highlights coordination over
control; it is a means of dealing with political controversies in which actors, political and nonpolitical, arrive at mutually acceptable decisions by deliberating and negotiating with each
other. Intrinsic to this in the policy process is a strong reliance on – and faith in –
experimentalism.16 Coordination of economic policies among Eurozone states is, if one
leaves aside the purely symbolic sanctions foreseen in the Treaties (their symbolic character
proven by the German-French “cause celebre” of the early 2000s), the result of actual
coordination. Member States were expected to engage in a peculiar kind of mutual peer
review, subject to a set of fiscal targets that are rather flexible.17
The trump card in the defence of governance is that governance is based on a variety of
different processes with different authority bases, and increases the chances of civil society
influencing joint decision-making and implementation.
Governance constitutional theory became a clearly differentiated alternative to classical
democratic constitutional theory in the late 1990s and early 2000s. At the same time that it
became theoretically more defined, a large body of literature proposed its application to new
policy fields, echoing and at the same time reinforcing institutional initiatives of that same
kind (the Lisbon Strategy, the Open Method of Coordination). By the time of the Laeken
Convention, there was serious debate about the need for constitutionalising both governance
and some of its specific manifestations (a proposal that could be seen as a contradiction in
terms, or further proof of the hegemony that governance had achieved by then). Even if the
crisis has revealed the limits of integration through governance, the fact of the matter is that
15
In the sociological language, it could be said that new means of integration of society have
emerged. In more legalistic speak, it could be said that a whole new understanding of how to
forge the general will of a community has been discovered.
16
Consider in particular Sabel and Zeitlin (2008, 2010, 2012). Their notion of experimental
governance (EG) is a “recursive process of provisional goal-setting and revision based on
learning from the comparison of alternative approaches to advancing them in different
contexts.”(2012:169)
17
There was no immediate precedent or template for how to do it, even if the IMF guidelines
were not without influence, and similarly the cumulated know-how of the Bank of
International Settlements played a key role in piloting the creation and launch of the European
Central Bank and in providing default substantive solutions to quite a number of issues and
problems.
6
the main thrust in the actually implemented reforms is to reconfigure, not abandon
governance.18
Perhaps the most articulated attempt at building up a constitutional theory of governance that
explicitly departs from the statist paradigm is to be found in the work of Oliver Gerstenberg
(2001; 2002; 2004) who seeks to develop a new constitutional theory that is capable of
harnessing the democratic and constitutional potentials in the post-national constellation
which is marked by a decline in state sovereignty and a shift of governance from the public to
the private sector. It is a world increasingly marked by functionally differentiated private
governance regimes. To Gerstenberg, “(f)rom a constitutional perspective … the crucial
question is, whether the shift towards private governance ipso facto amounts to a depoliticisation of problems … or whether the emerging private governance regimes can be,
through innovative forms of legal regulation, made democratically accountable and thus be
tied back to the practice of the public use of reason. This is, in legal terms, the question of
how private governance regimes can be both – and co-originally – constitutionalized and
democratized.”(2002:313) Gerstenberg argues that this can be achieved through a
horizontalization of the constitution that on the one hand has democracy built into it as an
emergent property drawing on deliberative experimentalism and on the other hand is based on
monitoring through private law, i.e. with private actors operating as “practical lawmakers who
respond directly to the constitution.”(2001:317)
2.1.2 Assessment
Radical European cosmopolitanism seems to us incapable of delivering a viable cosmopolitan
constitutional theory, for three main reasons:
The first is empirical and pertains to the nature, direction and magnitude of changes. There is
little doubt that prevailing hierarchies associated with states are changing but the networks
that governance scholars are highlighting remain anchored in and draw on hierarchies rather
than replacing them. That is important because it means that there is greater scope for
coercion in the system than governance proponents generally will concede. Just consider
European economic governance, the darling example of the governance literature. The crises
that have hit the European Union since 2007 have revealed not only the fragility of
governance, but have also spurred a mutation from soft governance to hard governance. While
a full shift to the framework of democratic constitutional law seems to be off the agenda, and
while fiscal targets have been formalised and rendered more precise in appearance than in
reality (what is indeed a structural deficit? And how can it be calculated in an objective or
intersubjective manner?), the fundamental change has been a hardening of sanctions, and the
transformation of their symbolic nature into operational sanctions, which could easily be
18
So much so that it could be said that the changes in the Stability and Growth Pact, which
are profound and numerous, amount to a shift not from governance to law, but from soft
governance to hard governance.
7
imposed if the Commission and the creditor states agree (thanks to the shift from qualified
majority to qualified minority, cloaked by reference to the Orwellian term of reverse majority).
Hard governance, even more than hard law, is difficult to fit into the theoretical framework of
governance as a constitutional theory. Sanctions are power in action, and there are some
actors that do have the power to impose sanctions, so voluntary and experimental governance
may give way to a rather hierarchical and rather predictable form of (authoritarian) minority
rule.
The second is that governance lacks a clear concept of political community, collective action,
and collective goods. The onus on flexibility grounds the rejection of the form of law (which
is geared towards reflexivity, not flexibility, and presupposes a clear distinction between the
fixing of common action norms and their change, which disappears if norms become fully
flexibile) and of the use of coercion as the means of increasing the propensity to comply with
the law. When and if the form of the law and the reliance on legally disciplined coercion are
rejected, the very possibility of collective action and the stabilization of schemes of
cooperation based on formal and material equality are seriously threatened. There is thus a
very natural proclivity of governance to come hand in hand with an individualistic
understanding of politics, which leads to a denial of politics in the grammar of the Social and
Democratic Rechtsstaat. Indeed, we have by now a rather substantive empirical basis on
which to claim that while hard law can be placed at the service of the realization of the ideal
of material equality through progressive taxation, provision of welfare benefits and the
correction of the biases and structural imbalances against workers in labour relationships,
governance has mainly proven apt to support the process of unleashing of the structural
violence of capital that has undermined the Social and Democratic Rechtsstaat in the last
twenty years. Posing as a post-modern contribution to political theory, radical
cosmopolitanism runs the risk of supporting a rather pre-modern understanding of socioeconomic structure (Wolin 1989, 2008).
The third is that it is questionable whether governance can give rise to a proper theory of
democratic constitutionalism, let alone one with an explicit cosmopolitan vocation. Even a
benign interpretation of governance (which is already out of step with the crisis-induced hard
governance we see in today’s Europe, cf. Menéndez 2013), could not adequately address the
following critical remarks: “While it seems perfectly reasonable to emphasize the problemsolving dimension of democracy, it seems less plausible to invest all principled expectations
and legal safeguards of democratic legitimacy into the (more or less) spontaneous features of
cooperation between dispersed sites of problem-solving.” (Schmalz-Bruns 2005, p. 71).
Indeed, what radical European cosmopolitanism gets wrong, in our view, is the direct
association of democratic constitutional theory with the specific organisational-communal
configuration of the nation-state. Drawing on such an association to justify an entirely new
constitutional theory is to overstretch the experimentalist mandate and risks throwing the baby
out with the bath-water. It is entirely appropriate to reject methodological nationalism, but not
if that ends up undercutting the normative ethos of constitutional theory, and in the process,
reducing cosmopolitanism to a mere negative theory, depoliticising constitutional theory and
opening up the terrain for a purely individualistic understanding of politics and law.
8
The limitations are starkly revealed if we consider how the theory of radical cosmopolitanism
operates as a constitutional theory. How does it conceive of the EU’s basis of legitimacy and
that of European Union law? The answer is essentially negative: cosmopolitanism allows us
to transcend the shortcomings of the national constitutional order. The narrative is one of
unleashing individual rights and capacities, coupled with unlimited trust in the capacity of
almost self-generated and spontaneous order once these capacities have been unleashed. But
while the rhetoric is one of transcendence, it might not be outlandish to wonder whether this
might have some structural affinity to the constitutional theory of XIXth century liberalism.
Indeed, it seems to us that what is presented as a kind of anarchistic horizon (overcoming the
rudimentary and inept coercive character of law, ensuring experimentation) is nothing but an
updated version of rather old liberalism. What about constitutional conflicts? The answer
oscillates between hyper-pluralism (with all possible solutions being ecumenically embraced,
as with radical constitutional pluralism) and an unintended but perhaps inescapable
authoritarian monism. If the European example is anything to go on, such a development is
appearing in the last five years, associated with the economic crisis.
The upshot is that any attempt at conceptualising the EU must rely on established concepts,
but supplemented with terms that spell out what is novel and innovative. States have not
disappeared, neither have they ceased to condition behaviour. Experimentalism is an
important and insightful theory of policy-making, at the meso-level; aggregating it to the level
of constitutional theory represents a fallacy of composition. So while governance scholars are
correct in prompting us to pay due attention to novel features of European integration, they
take us too far in a direction where ad hoc and perhaps merely temporary features are turned
into a theory, and in the process, parallels and analogies to other political-legal systems are
lost or overlooked. Further, the EU is a complex configuration of experimentation and
emulation; as we will argue in extenso below, the institutional, procedural and substantive
development of European Constitutional law has resulted not only and not mainly from
experimentation, but from emulation. It is the mixture of old and new that needs to be
properly captioned when devising a constitutional theory for the European Union. With the
European Union experience in mind, it is quite clear that radical European cosmopolitanism
that highlights decentralised problem-solving and coordination is not sufficiently well situated
in contemporary developments and lacks an adequate normative core to offer any prospects
for a viable theory of cosmopolitan democracy.
2.2 Cosmopolitanised democratic constitutionalism
If radical cosmopolitanism breaks away from the democratic constitutional tradition, and very
much so from the postwar democratic constitutional tradition, cosmopolitanised democratic
constitutionalism starts from the other end of the problem, and makes of the
cosmopolitanisation of the democratic constitutional state its normative horizon. When taken
as a constitutional theory of the European Union, cosmopolitanised democratic
constitutionalism regards the European Union as the projection of the national democratic
9
constitution to the supranational level. The most prominent advocate of a cosmopolitanised
democratic constitutional theory of European integration is Jürgen Habermas. In the following,
we indeed reconstruct the key tenets of this constitutional theory by reference to the work of
the German philosopher. In an impressive number of books and articles19, Jürgen Habermas
has addressed the vital question of whether deliberative democracy can be entrenched in
global and global-regional entities (beyond the nation-states). Habermas resuscitates the
Kantian cosmopolitan project and through that provides us with an elaborate and very
sophisticated attempt at formulating a viable cosmopolitan constitutionalism.20
2.2.1 The overall design of cosmopolitanised democratic constitutionalism: world, regional
and national political levels
Habermas both builds on Kant’s reasoning (juridification – taming power through law – is
understood as a rationalising and civilising process that opens up space for a cosmopolitan
global order), whilst at the same time altering and updating it, so as to make it work in a
global context that is dramatically different from the one of Kant when he established his
position on cosmopolitanism. An important issue that keeps preoccupying scholars is how to
entrench peace and make the world safe for democracy. Kant was ambivalent on how to
entrench cosmopolitanism at the global level and opted for a voluntaristic confederal structure
because he thought that a world republic would be inherently repressive. Habermas argues
that Kant based this on a mistaken analogy with the centralistic French republic. He further
claims that it is possible to entrench cosmopolitanism today through a novel configuration,
which he terms world governance without government. World governance without
government is premised on a clear distinction between ‘state’ and ‘constitution’ along the
lines that Hauke Brunkhorst (2004) has drawn this. A key premise is that: “(t)he state in its
modern form is not a necessary precondition of a constitutional order.” (Habermas 2006, p.
137) Such a structure is, according to Habermas, situated in three key levels and institutional
arrangements: the first, global, or world-encompassing level contains a set of supranational
arrangements; the second is labelled transnational and pertains to regional arrangements; and
the third refers to the nation-state level.
This structure is in turn based on a distinct division of functions. The supranational level –
institutionally embedded in a reformed UN system – would be confined to issues of securing
peace and protecting human rights. This system is based on the precept of the supranational
hierarchical structure being confined to a clearly delimited number of issue-specific, negative,
constitutional protections in order to serve as a safe-guard against the domination that Kant
19
With regard to books see Habermas (1998a, 2001, 2006, 2009, 2012); with regard to
articles see in particular Habermas (1998 b, 1998c, 2004). See also Grewal (2012),whose first
chapter offers a useful periodisation of Habermas’ approach to European integration, from
Euro-scepticism to Europhilia.
20
Other important proposals include Held (1995) and Archibugi (2008). In a different spirit,
see Scheuerman (2011).
10
feared from a world republic. Precisely because it is such confined it does not require a
comprehensive system of democratic legitimation (Habermas 2006, p. 174).
The second, transnational, level is preoccupied with global domestic politics (such as issues
pertaining to energy, environment, financial and economic policy) and is composed of
regional entities. It is not based on a hierarchical but rather on a heterarchical structure with
entities that negotiate agreements among themselves. These issues may also be global but are
assumed to be more conflict-prone and are more suitably handled at the transnational level, in
more densely integrated contexts, through bargains, compromises and various types of
settlements.21
The third, nation-state, level remains the key repository of democratic legitimacy. In this
structure nation-states have nevertheless gone through learning processes so as to make their
citizens understand themselves as both global citizens and as citizens of their respective states.
From a democratic perspective it is important to underline that “(b)oth at the level of the UN
and of transnational negotiation systems, it must receive indirect “backing” from the kinds of
democratic processes of opinion- and will-formation that can only be fully institutionalised
within constitutional states, regardless of how complex federal states on a continental scale
may become.” (Habermas 2006, p. 141)
Democratically speaking, the structure is based in two sources: world citizens and citizens of
states. The main democratic legitimation processes are still anchored in the nation-states, but,
as noted, subject to the proviso that these states have gone through important learning
processes so that citizens understand themselves to have responsibilities to non-nationals
which backs up their role as world citizens.
It is important to notice that this three-fold distinction is based both on normative and
prudential reasons. Indeed, the prudential reasons are the ones that render advisable not only
to distinguish three levels, but to insist on a specific “tempo” in the building up of the global
cosmopolitan order.
The overall drive to integrate is indeed not a normative purpose by itself, but the “unregulated
growth in the complexity of world society”, that increasingly undermines the capacity to act
of member states by placing “systemic restrictions on the scope for action of nation states”
(Habermas 2012, p. 15; see also p. 12); that complexity is actually shifting power from the
national to the supranational and international levels; the shift by itself “undermines the
democratic procedures in nation states to the extent that national functions shift to the level of
transnational governance.” (Habermas 2012, p. 15)
Habermas sees in internationalisation per se a problem. And indeed, if internationalisation
will only proceed through intergovernmentalisation, the game will be over for democracy.
21
Brunkhorst (2009, p. 66) usefully refers to this as a “global system of segmented
continental regimes.”
11
Here comes the clear and neat distinction between the regional level (in particular the
European level) and the global/international level. At European level we find not only an
existing and well-established process of integration framed by national and supranational
constitutional law, but also the political and symbolic resources and capacities to render both
possible and desirable “extending democratic procedures beyond national borders” (Habermas
2012, p. 16).
The European level is expected to be a cosmopolitanised version of the national level.
Harbouring similar expectations pertaining to democracy at the global level would only
(certainly in the short run but perhaps also in the mid and long run) give rise to political
frustrations. European integration has come a long way towards the normative ideal, and has
served as a linchpin for pushing the cosmopolitan turn forward.
2.2.2 The European Union
The EU is a transnational system that has come about through two major innovations of
relevance to cosmopolitan constitutionalism. The first refers to the primacy of supranational
law amidst member state monopoly of violence, whereas the second is a system of shared
sovereignty. With regard to the former, Habermas notes that “(i)n exercising its legislative
and judicial competences, the European Union binds the member states as the bodies which
must implement its decisions even though it does not dispose over their sanctioning powers.
And the national monopolists over the legitimate use of force allow themselves to be enlisted
for the application of European law which has to be ‘implemented’ at the national level.”
(Habermas 2012: 25) The EU level is cast as an independent level of law. That brings up the
tricky issue of primacy of application which Habermas resolves by drawing on such notions
as functional justification (Franzius 2010) or efficacy (von Bogdandy 2009). The justification
for this arrangement Habermas traces back to the EU’s inception.
That relates to the second innovation, which Habermas derives from a teleological
reconstruction of the EU’s emergence. The EU is founded on the basis of two sources, EU
citizens and citizens of the member states (peoples of Europe); hence the ambiguous notion of
‘shared sovereignty’.
2.2.3 Assessment
In a world marked by a deeply embedded dialectic of Schmittian and Kantian components,
Habermas is concerned with providing us with an empirically grounded proposal for how to
transform the fragmentary cosmopolitan legal and political structures we face today into a
more coherent and viable system capable of ensuring cosmopolitan peace. Whether this
amounts to a theory of cosmopolitan constitutionalism that properly captures the distinctive
features of the EU is, as we will show, less clear. One issue pertains to the status of
democratic authorisation. Habermas underlines, as noted, that the multi-level cosmopolitan
12
construct is one where the nation-states remain the key repositories of democratic legitimacy.
The justification for the weaker democratic credentials of the global level hinges on the
supranational entity’s ability to confine its tasks to the critical ones of ensuring peace and
protecting human rights. But issues of war and peace are controversial; there is no a priori
reason to assume that these can be safely left to relatively depoliticised bodies. It is also
difficult to foresee that there will not be strong issue-linkages with other concerns that stem
directly from efforts to ensure peace and protect human rights. Also from a normative
perspective it is hard to see that these issues can be singled out from for instance matters of
economic justice (Lafont 2008).
Habermas also underlines that the global system must be hierarchical in order to ensure peace;
a central condition here is the availability of means of power and non-selective application of
law. That in turn “engenders the spectre if not of a hyper-centralised world state, then at least
the possibility of a supranational order in which for all practical purposes the UN operates, in
the final instance, as a military arbiter. At least in this context, ‘constitution’ and ‘state’
remain more closely linked than Habermas wants to concede.” (Scheuerman 2008, p. 141-2)
But with a more compelling global structure the presumption of weak democratic legitimation
becomes problematic. How to ensure the democratic legitimacy of the central global level
thus remains an unresolved problem.
Why this becomes a problem also relates to the manner in which Habermas depicts the second,
transnational, level, and in particular, the EU. An important assumption is that the member
states will retain their democratic constitutional arrangements and function as proper pillars of
the EU system. The question is how that can be squared with the cumulative effect of
Europeanisation, and the manner in which the member states are incorporated in the EU. The
EU as a transnational system is not situated over and above the member states; it is an
amalgam of supranational institutions and transgovernmental arrangements. This matters to
the quality of state constitutional democracy in the member states, because their democratic
arrangements are transformed and programmed to take the EU into account. Thus, their role
as pillars of democratic legitimation is mediated through and increasingly dependent on the
processes that take place at the EU-level. As we will show in the next section, it is possible to
construe this in a manner that is consistent with key tenets of democratic constitutionalism but
that requires interpreting the two main innovations that the EU is based on in a different
manner than does Habermas. With regard to the first innovation that Habermas refers to,
namely primacy (Habermas 2012, p. 11), it is important to note that constitutionally speaking
EU law does not enjoy primacy as a separate legal system which Habermas implies, but as the
manifestation of those tasks that the member states have collectively decided to do together.
The difference is important.22 Habermas’ position is vulnerable to what we may term ‘the
22
Consider constitutional conflicts. Conflicts that pit European against member state
constitutional law are conventionally understood as vertical, and as pitting two legal systems
against another. But from the perspective of the theory of constitutional synthesis, most of
them are horizontal or a mix of vertical and horizontal. The matter is whether European law is
a proper manifestation of the common constitutional traditions of the member states or
whether it favours one in particular or whether it veers off and as such becomes problematic.
13
false lure of primacy’. His rendition of how it works in practice does not provide adequate
safeguards to ensure a sufficiently good anchorage in the key constitutional principles that we
associate with the democratic constitutional state. This also implies that any learning process
at the European level is bound to be stymied due to inadequate normative uptake.
The other innovation, that of shared sovereignty, ends up only amplifying this. It is based on
the tenet that the EU and the member state levels ought to be co-equal (“the EU citizenry as a
whole shares the constitution-building power with a limited number of ‘constituting’ states
which acquire a mandate from their peoples to collaborate in founding a supranational
political community” (Habermas 2012, p. 11), or drawing on what Habermas discerns directly
from Bogdandy: “Theoretically speaking it is more convincing to conceive of the individuals,
who are (simultaneously) citizens of the States and of the Union, as the only subject of
legitimation” (Habermas 2012, p. 36, italics in the original). What is problematic is how
Habermas links the notion of co-equality to the establishment of the EU. This process can be
construed he notes, when “interpreted in teleological terms, as though the more or less
contingent historical outcome has been the deliberate result of a regular constitutional
convention.” (Habermas 2012, p. 31) More specifically, “the foundation of the European
Union can be conceived retrospectively as though the citizens involved (or their
representatives) were split into two personae from the beginning; in that case every person as
a European citizen in the constitution-founding process encounters herself, as it were, as a
citizen of an already constituted national people.” (Habermas 2012, p. 38) The problem with
this analysis is that the moment of founding did not include any body that was democratically
instructed or had a democratic mandate from the European citizens who at that point in time
were not singled out as a distinct category of European citizens. The real change occurred in
1979 when the European Parliament was directly elected by the citizens of the European
Union. Habermas is correct in assuming that the system had a built-in anticipation that it
could over time come to express the will of European citizens through democratically elected,
and accountable, institutions. But Habermas does not capture the distinct manner in which the
EU was initially established and especially the distinct manner in which the member states
lent their constitutional democratic credibility to the EU because they understood the EU to be
an authorised extension of their own constitutional structures. In Habermas’ account there is
no structure to enforce justifications that give consistent sustenance to constitutionally
entrenched democratic legitimacy at the EU-level.23 The upshot is that Habermas’ conception
of the primacy of European law lacks a proper democratic anchoring.
A further implication is that the analysis that Habermas provides of what went wrong in the
EU is not based on an adequate account of where the process of EU democratic
constitutionalisation went awry. Much of Habermas’ current critique of the EU is apt, but the
prescriptions for how to get out of the conundrum are less convincing. In this connection it
might be a point to note that the EU is not a transnational organisation through volition or
choice; it is so first and foremost because the EU is a case of stateness denied. Strengthening
23
This line of analysis is also highly vulnerable to the allegation that the ECJ performed a
legal coup d’etat, as especially Stone-Sweet (2007) has argued.
14
this structure to deal with the crisis by allocating more competences to the EU-level may not
necessarily render it more suitable as a cosmopolitanising vehicle. For instance, further
building up its military and defence capabilities within the present structure will not improve
democratic oversight and control.
Habermas’ theory relies on the EU’s ability to serve a vital bridging function and to mediate
between the nation-state and the global level. That is a complex balancing act that Habermas’
theory does not provide us with sufficiently clear directions for how to handle effectively.
There are several conundrums: Will not an EU with clear constraints on stateness be better at
sustaining the democratic constitutional arrangements of the member states relatively intact
than a more conventional federal-type structure? At the same time, a tightly constrained EU
will likely be a weaker cosmopolitan building-block because it will be less capable of keeping
the nation-states’ exclusivist proclivities in check. Will an EU with stronger elements of
statehood be more effective globally but also more imposing on the member states? As we
will show in the next section, the key to unlocking the conundrums can only be found if we
adopt a different way of thinking about the EU, incidentally one that is closer to the facts on
the ground.
2.3 A cosmopolitan alternative? The theory of constitutional synthesis
In the previous section, we have argued that neither radical cosmopolitanism nor
cosmopolitanised democratic constitutionalism provides a satisfactory constitutional theory
for the European Union and European Union law. We argued that radical pluralism makes an
unnecessary break with the long tradition of democratic constitutional law. Instead of
clarifying the “nationalistic” bias that has grown within the democratic constitutional tradition,
it opts for transcending the grammar of democratic constitutional law tout court, and in the
process, opens the ways for the return of classical liberal constitutionalism (soft and hard
governance and neoliberalism come hand in hand). Cosmopolitanised democratic
constitutionalism offers a sound normative basis, but fails to come to terms with the actual
constitutional evolution and configuration of the European Union. As a result, it is also
incapable of giving a complete account of the legitimacy basis of the European Union and of
providing guidance in the solving of constitutional conflicts.
In this section we present an alternative cosmopolitan constitutional theory of the European
Union: constitutional synthesis. It builds on the two constitutional theories we have described
in the first section, but tries to overcome their shortcomings. Constitutional synthesis shares
many of the basic premises and insights of cosmopolitanised democratic constitutionalism,
but rather than relying on a historically retrospective as if approach it shows how the actual
constitutional path of the European Union had a built-in normative cosmopolitanism that
lends itself to the development of a distinct theory of cosmopolitan constitutionalism.
The theory of constitutional synthesis (Fossum and Menendez 2011) takes as its points of
departure two fundamental facts of the European experience.
15

First, the EU was forged in a historical situation that provided a ‘cosmopolitan
opening’ (notably) in Europe.24 The hard learnt lessons of two world wars in two
decades led to national constitutional provisions (notably the Italian, French and
German) or new constitutional conventions (in the other three Member States of the
original EEC, resulting in a constitutional amendment in the Netherlands and in
decisive judicial rulings in Belgium and Luxembourg) that aimed at rendering the
states and the constitutions open and cooperative, or what is the same, that rejected the
autarchic road to democratic constitutionalism. European states wanted to retain and
reinforce their identity as Social and Democratic Rechtsstaaten, but in the
understanding that the only normatively sound and realistic way of achieving that was
by means of opening themselves up. By authorising and mandating supranational
integration, post-war constitutions aim at embedding national constitutions within a
broader supranational legal framework with a clear cosmopolitan orientation.25 Indeed,
as just said, postwar constitutions not only enabled but mandated integration, or what
is the same, clearly pointed to wider and more encompassing political structures,
decision-making processes and substantive norms that could realise the ideal of the
Social and Democratic Rechtsstaat beyond the nation-state.

That influence was reinforced through a second ‘fundamental fact’, namely that the
EU was born amidst and represents an effort to establish a supranational entity in a
system of already established constitutional democratic states. As just said, the
distinguishing postwar feature was that these states recognised that they could only
retain democracy through a form of binding co-operation that would also have direct
constitutional implications. National statehood was bound to be transformed in the
process (the transformation was indeed decided at the national constitutional level
when inserting integration clauses in the fundamental law, or when the constitution
came to be interpreted as open and cooperative through emerging constitutional
conventions), but not transcended. National constitutions were to find ways of
integrating in a transnational and supranational constitutional space, but they were not
to be transcended by the standard “revolutionary constitutionalism” expedient of
writing a supranational constitution. The European Union was to emerge through the
integration through democratic constitutional law of states that were already
constitutional democracies themselves; to be precise, they were Social and Democratic
Rechtsstaaten.
24
The EU, as Jürgen Habermas (1998b) has noted, is a case of learning from disaster. See also Fossum
(2011).
25
Article 79 (3) of the German Basic Law’s eternity clause deems amendments that might negatively
affect human dignity or the principle of democracy to be unconstitutional. The Court has recently
noted that the Basic Law’s eternity guarantee ‘makes clear ... that the Constitution of the Germans, in
correspondence with the international development which has taken place in particular since the
existence of the United Nations, has a universal foundation which is not supposed to be amendable by
positive law.’ (German Federal Constitutional Court 2009)
16
These two facts have four major consequences for the shaping of the constitutional theory of
the European Union.
The first one is that the European path to the establishment of a supranational democratic
order is different from the constitutional paths followed at the national level. European Union
law is neither the result of revolutionary constitutionalism (a “constitutional moment” which
marks a new constitutional beginning by the laying down of a constitutional text) nor of
evolutionary constitutionalism (the unfolding in the fullness of time of constitutional
conventions, confirmed in critical political moments as the fundamental law of the land). It is
the result of a recombination of the elements of constitutional unfolding: constitution-making,
structural constitutionalisation, substantive constitutionalisation. The European path to a
democratic constitution is synthetic: as is the case with revolutionary constitutionalism,
synthetic constitutionalism proceeds by reference to an explicit and written set of
constitutional norms, the collective of national constitutional norms joined up by the
regulatory ideal of developing into a common constitutional law; as is the case with
evolutionary constitutionalism, constitutional standards are fleshed out in due time by a
bottom-up approach very much related to the resolution of specific constitutional
problematiques. European integration presupposes the creation of a new legal order, but not
the creation of a new set of constitutional norms; a key source of the legitimacy of the new
legal order is indeed the transfer of national constitutional norms to the new legal order.
The second one is that the collective of national constitutions and national constitutional law
are to be regarded as the basic building-blocks of European constitutional law. Indeed, the
postwar period can be seen as a coordinated constitutional moment in which a clear will to
become stable Social and Democratic Rechtsstaaten (and thus, states where the primacy of the
democratic and socially just constitution is clearly affirmed) is seen as coming hand in hand
with creating a transnational and supranational constitutional space. The primacy of the
constitution of the Social and Democratic Rechtsstaat requires projecting the constitution to
the supranational level. This entails that:
 national constitutions and national constitutional law are to be regarded as the deep
constitutional law of the European Communities. In the absence of a pan-European
supranational constitutional moment (missing a European constitution written in a
supranational revolutionary constitutional moment) the collective of national
constitutions projected to the Community level, the constitutional law common to the
Member States of the European Communities, is the grounding democratic legitimacy
block of European Union law. The founding Treaties, far from being the key set of
constitutional norms of the Union (as has been argued over and again in the legal and
political science literature) should be seen as providing the concrete formulation of
some of the constitutional norms contained in the common constitutional law to the
Member States. Not only were the Treaties a ragbag of constitutional, legal and
administrative provisions, but in constitutional terms, they were patently incomplete
(and they may be said to remain so even after the amendments and reordering of the
Treaties operated by the Lisbon Treaty at its entry into force in 2008). In summary, a
process of constitutional synthesis entails that the constitutions of the participating
17

states take on a new seconded role as a part of the emerging collective constitutional
law of the new polity. Each national constitution would then start to live a ’double
constitutional life’: Each would continue as a national constitutional arrangement,
whilst it would also simultaneously be a part of the collective, European, constitution.
Constitutional synthesis therefore presumes that there is a substantive identity between
national constitutional norms and Community constitutional norms.
But, at the same time, the process of integration requires national constitutional norms
to be reflexive, open to the critical arguments that derive from the positive
constitutional law of other Member States.
The third is that the institutional capacities and structure of the European Union are the result
of a complex dynamic of emulation, adaptation and experimentation. The institutional
structure is incomplete, and has to be completed as the process unfolds. A major part of the
process results from uploading common patterns of institutional structure from the Member
States; but there is also adaptation (which implies tinkering with national institutional designs
and structures to ensure the proper achievement of supranational goals) and outright
experimentation. The process is guided by constitutional norms and standards. The point is
thus not only and not mainly to ensure functional goals and purposes, but also to ensure the
legitimacy of the resulting constitutional order. This explains the peculiar principle of
institutional balance, which ensures the institutional design of the Union is part of the
transmission belt of democratic legitimacy from the national to the supranational level of
government.
The fourth is the central role of time in the development of this constitutional order. This
applies to the legal realm; it also applies to the institutional structure that is set up to carry this
legal order at the supranational level. The ‘synthetic founding moment’ is one where a
rudimentary supranational institutional structure is set up. The details and reach of this are
worked out over time, as the process of synthesis proceeds and comes to cover a broader
range of policy areas. Constitutional synthesis can therefore be described as the combination
of normative synthesis, institutional development and consolidation, and accommodation of
difference. These three processes, it is important to underline, come with very different inner
logics: the first exerts a centripetal pull towards homogeneity, the second and third contend
with built-in centrifugal elements. This complex structure is one where there is one
supranational law but several institutions that apply the supranational law in an authoritative
manner. The peculiar combination of a single law and a pluralistic institutional structure
stems from the fact that there is no ultimate hierarchical structuring of supranational and
national institutions. The peculiar combination is, if anything, compounded by the pluralistic
proclivities of institutional consolidation at the supranational level. The ensuing structure is
far more fragile and susceptible to upsets, whether brought on by external environmental
shocks or upsets, or the many built-in tensions in the multilevel EU structure. Constitutional
synthesis as a process has a built-in propensity for self-subversion.
The upshot is that the conditioning context from which a constitutional theory for the
European Union may be discerned is one of statism modified by supranationalism; it is not
18
one of supranationalism somehow transcending statism. Having said that there are at least two
distinct features of this new modified statism.
 Conceptually speaking, it is a case of stateness being disassociated from (uniform and
unified) state sovereignty. That is apparent in the manner in which stateness manifests
itself. As we shall see in more detail below, it is a curiously bottom-up process in the
sense that the constitutive states lend the supranational entity their stateness; the EU’s
stateness in that sense depends on the member states’ willingness to sustain this
relationship. While we have argued (and keep on arguing) that this peculiar
constellation had a massive normative surplus in the first decades of integration, it
runs the risk of becoming a road block in the path towards the politicisation and
democratisation of the European Union. 26
 At the same time, the particular political configuration of the EU with the distinct form
of ‘bottom-up stateness’ that it draws on is embedded in a distinct constitutionalism,
and in a complex blend of cosmopolitanism and federalism. Indeed, it is the novelty of
what is aimed at (not in the sense of transcending democratic constitutionalism, but
aiming at a very different way of realising it) that comes a long way to account for the
novelty of the path that was followed.
The cosmopolitan component manifests itself most explicitly in the regulatory ideal of a
common constitutional law, which draws its normative credence from the universal potential
of the key constitutional principles of the national Social and Democratic Rechtsstaaten. The
regulatory ideal has two main roles.
 On the one hand it preserves the universal core of the key constitutional principles.
 On the other, it provides concrete prescriptions for how to embed them in concrete
institutional-legal form within the distinct pattern of stateness in Europe, and with due
respect to what is common to the constitutional traditions of the member states.
As such, the regulatory ideal forms the leitmotif for the ensuing process of constitutional
synthesis: of the putting in common of national constitutional norms (normative synthesis),
and of the development of a supranational institutional structure (institutional development).
Both of these processes must accommodate the already large difference and diversity that
exists in Europe, in terms of different legal systems, institutional structures, language regimes,
and cultures. The viability of the system depends on a spirit of federalism that helps to
reconcile integration and accommodation of difference/diversity. In the first stages of the
process, conflicts are fundamentally horizontal. They involve different understandings of how
a certain constitutional principle should be operationalised; or how a conflict between
constitutional principles should be sorted out. European constitutional law is forged by
solving the conflict. It is indeed an optical illusion to claim that there is a conflict between
26
As Hobbes and Rousseau agreed, sovereignty depends on the actual capacity to act: It
dissolves itself when political action is blocked by the structural design of the constitution
(See Hobbes 1996, chapter XIX and chapter XXI.12) Rousseau book I, chapter 7. Whether
post-national or not, the state as the centre of imputation of the general will must be capable
of acting. Otherwise, as Heller rightly indicated, there is no chance for democratic politics,
something that was learnt only too late in the interwar period, and we may be running the risk
of also relearning too late (Heller, 1942).
19
European and national constitutional law. The conflict is between competing understandings
of how the regulatory ideal of European constitutional law should be concretised. The
“federal” spirit involves in this case an element of learning from other constitutional
traditions, of constitutional reflexivity triggered by the constitutions with which the European
constitutional field is shared. As time passes, however, and European constitutional law gains
depth and breadth, truly vertical conflicts emerge. The “federal spirit” then does not require,
as the European Court of Justice has claimed over and again, an unconditional primacy of
supranational law. Indeed, we have argued, that the issue should be solved starting from an
analysis of the underlying national constitutional norms, and giving to the supranational
understanding preference only to the extent that it resonates with a well-argued and wellarticulated set of national constitutional norms and the very logic of federal inclusiveness
favours the supranational solution. It is the regulatory ideal of the Social and Democratic
Rechtsstaat that must be the umpire of European constitutionality.
Constitutional synthesis affirms that the legitimacy of the European Union results from the
key role that the collective of national constitutions play as the deep constitutional law of the
European Union (which accounts for the authorisation to integrate in the absence of an
explicit supranational constitutional moment: the democratic license comes from the
projecting of national constitutions to the supranational level) and from the fundamental role
that the design of the institutional structure (institutional balance) and of the decision-making
process (double democratic legitimacy) play in ensuring the transmission of democratic
legitimacy from the national to the supranational level. This corresponds in a very innovative
way to the federal principle. There is no need of assuming a purely substantive legitimacy,
which cleanses out democratic will formation and contestation from the process of integration,
as radical cosmopolitanism does. There is no divide between the national and the
supranational when it comes to legitimacy credentials. And there is no need of making
complex exercises in constitutional gymnastics to get to a double legitimacy in personal terms,
making the legitimacy of the Union rest in citizens qua European citizens and qua national
citizens, as Habermas does. To simplify greatly, legitimacy is ensured through the distinct
manner in which national constitutions are projected to the European level. Some might argue
that this claim rests on the same kind of retrospective as if approach that Habermas applies.
But that is not the case. We do not start from a postulate that is out of synch with the historical
record. The actors themselves did not articulate an explicit constitutional theory, but they left
numerous building-blocks that we could assemble to build such a theory. Our reconstruction
of what actually took place enabled us to put these bits and pieces together to form a coherent
theoretical account. When democratic constitutional states agree to integrate by means of
setting up a supranational entity, including provisions to authorise integration in their
constitutional orders but without equipping the supranational entity with (or submitting to) a
democratically established supranational constitution, they commit their national constitutions
to the task of ensuring that the system (EU institutions and member states) collectively
upholds the constitutional norms. The recurrent references to the common constitutional
traditions of the Member-States is another way of expressing the normative-regulative ideal
that all aspects of this extended constitutional arrangement must be in compliance with in
order to ensure the core constitutional norms underpinning the democratic constitutional state.
20
The omnipresence of critical comparative arguments; the frequent resort to the “common
constitutional traditions”; and the conditioning weight of actually existing institutions and
legal provisions form a coherent albeit unarticulated underlying theory of constitutional
synthesis.
Constitutional synthesis assumes the central and fundamental role played by processes of
constitutionalisation for several reasons. First is the onus on European integration as a legally
ordained process of securing peace. Second is that European integration is the foremost
example in history of establishing a system of democracy that is constitutionally stabilised in
a context of already established constitutional democracies. The system that is being
established – a political and legal experiment – cannot carry the burden of legitimacy whilst it
is being established. Instead it must constantly prove to the constituting systems that it is
capable of serving the constitutional principles that the entire construct is based in. The
normative burden is shifted to the overarching entity only when the constituting members –
states and citizens – agree to do so. Thus, from a normative perspective there is neither
primacy nor shared sovereignty in the manner Habermas describes these terms for the EU.
What is implied here is rather that the process of integration is one of establishing what form
and level of integration is needed to ensure the best possible realisation of the core
constitutional principles embedded in the member states. There is no a priori answer to this
question because the process is unprecedented.
Finally, constitutional synthesis can reconstruct the process of constitutional integration and
the resulting European constitutional law in a way that is capable of integrating the record of
facts without losing its normative edge. The aspiration to combine the regulatory ideal of a
single law guaranteeing equality to its recipients, and a pluralistic institutional structure,
where the final word on the substantive content of the common law is shared, rather than
monopolised, is congenial to the establishment of what is substantially a constitutional
structure through an international legal form (the founding and amending Treaties). Similarly,
the assignment of a role to the ECJ in the guardianship of European constitutionality is not
reflected in explicit constitutional provisions, but results from the construction of specific
Treaty provisions in the light of the substantive constitutional nature of Community law. In
that very same light, constitutional synthesis is capable of distinguishing between different
types of constitutional conflicts. Instead of renouncing any normative edge regarding the
primacy of European law, constitutional synthesis retains the normative potential of national
constitutions. One thing is horizontal conflicts, conflicts between diverging national
constitutional articulations of constitutional principles. If solving these conflicts is essential
for the realisation of the normative ideal of equality before the law (if the conflicts come in an
area where the Union should be competent), Union law does not represent the imposition of a
supranational standard in a top-down fashion on national legal orders, but makes up the very
constitutional terrain wherein the conflict among national legal orders is sorted out. If, on the
contrary, we find a genuinely vertical conflict, in which supranational law contradicts a
relevant majority of national constitutional norms, Union law plays a very different role. And
there are very good reasons to put into question that the last substantive word should be with
supranational law.
21
3 Conclusion
This chapter has considered the prospects for a viable cosmopolitan constitutional theory. A
key issue in that regard is whether such a cosmopolitan constitutional theory would compel us
to embark on large-scale conceptual innovation, or whether we can rely on established
constitutional terminology and state-based categories. Such a theory, we would argue, cannot
build on the nation-state, but must instead be based in more general principles of statehood –
understood as a hierarchical system of self-intervention. That insight has informed our
assessment of the European Union as a possible candidate for a viable cosmopolitan
constitutional theory. Our reconstruction of the European experience has shown that it is
possible to discern elements of a distinct cosmopolitan constitutional theory from the
European integration process, not the least because the European Union has had a
constitutional-democratic vocation from the outset. It is also clear that this vocation was not
articulated as part of an explicit constitutional theory and in fact had to be discerned through
reconstruction. In the chapter we assessed two other attempts at devising a cosmopolitan
constitutional theory based on the European experience, which were contrasted with our own.
We found that our approach is more descriptively accurate than the two alternatives presented
here. We also argue that it can be properly grounded normatively speaking. For constitutional
synthesis to work there must be a viable process of federalisation, to develop the necessary
trust and the federal spirit or federal comity that is a vital prerequisite for living together. The
European Union was for a long time en route but has now also clearly veered off from the
federalising path. The benchmark is not integration as such but federalisation which includes
finding a viable balance of integration and preservation of difference/diversity coupled with
accommodation, in order to develop a viable system of self-rule and shared rule.
These comments underline the need for operating with a rooted notion of cosmopolitanism,
which is explicitly embedded in a viable federalism. That implies on the one hand that a
theory of cosmopolitan constitutionalism must be embedded in a set of universal principles
and a set of institutional arrangements that help to embed these principles in a concrete
institutional and cultural context. The theory thus needs a cosmopolitan leitmotif that is
embedded in and reflects the core constitutional principles’ universal character, as well as the
manner in which these principles have been embedded in a system of states within a given
territory or region. As such, it also needs a measure of stateness in order to ensure democratic
autonomy and self-governing through hierarchical self-intervention. The reconciliation of the
three regulatory ideals of the Social and Democratic Rechtsstaat (the Rechtsstaat, the
democratic state, the social state) is empirically impossible if state organised coercion cannot
be used so as to avoid that the socio-economic rights of capital holders lead to the
dematerialisation of the Rechtssaat, to use Heller’s terms. Cosmopolitanism as a political
project needs to have macroeconomic, tax and expenditure underpinnings. Otherwise it
becomes, as is most of the time the case with radical cosmopolitanism, an aesthetically
superior variant of oligarchy (neoliberalism being the most common oligarchical political
theory nowadays). Further, the constitutional theory needs to be underpinned by a viable
22
federalism that spells out how the system is internally structured and that also spells out how
it concretely deals with the external world. The system must be imbued with the spirit of
federalism in two complementary senses, because federalism is about self-rule and shared rule,
and about how to balance and reconcile the two. The internal structuring of the entity is
forged according to the precept of reconciling self-rule and shared rule; the same principle
will apply to the entity’s relations to the external world, but now at a different order of
magnitude.
This particular combination is compatible with several ways of structuring or relating to
stateness. That hinges on the nature or scope of initial consent, combined with the procedures
for eliciting consent for deeper integration over time. A viable cosmopolitanisation may
require the co-existence of these forms. One is a top-down version that is based on an explicit
initial commitment to stay together in a constitutional arrangement and contains procedures
for consensual deepening. Such a system is based on the standard hierarchical system of selfgoverning that is typical of the state formation. That system must be normatively speaking
subject to constant challenge from outside in the best critical cosmopolitan manner in order to
retain inclusiveness. The other way is more bottom-up and based on limited initial
constitutional consent and a constrained institutional structure, combined with procedures for
consensual deepening over time. Such a system is based on bottom-up or borrowed or
conferred stateness. It is dynamic and has provisions for further conferral of core elements of
stateness to the central level, provided it meets with core normative criteria. The combination
of these versions within a global system of cosmopolitan norms, rules and principles may be
able to sustain a cosmopolitan constitutionalising impetus with global reach.
23
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