Jean Monnet Center at NYU School of Law


II Constructivist Approaches to the `European' Polity

A range of interdisciplinary legal-political science work offers ways of making it possible both to preserve the potential of the sui generis assumption about the EU and to provide guidelines for comparison. In general terms, the reformulated view of EU constitutionalism we develop in this paper on the basis of the discussion of social and legal constructivism is a case in point. Its focus is a tension between the abstract and the formal. More specifically, we argue that debates over the meaning and composition of new institutions in the `European' polity such as, for example, Union citizenship, or, the Schengen Convention, provide an access point for our argument, especially in so far as they instantiate the principle of flexibility and its emergence as a new norm. In the following two sections, we proceed to elaborate on the interdisciplinary approach which, as we suggest, will allow us to track norms from `the social' to `the legal'. The leading questions are which norms have come to guide practices and processes in the `European' polity, and how do these norms change, i.e. from social norms to legal norms?

Explaining this link between the social and the legal on the basis of an interdisciplinary perspective on norms is not entirely new, to be sure. It has been most prominently explained in Jürgen Habermas's work on the functional importance of law and its potential to generate integrity in a society that is fragmented into seprate social and political spheres (Habermas 1992). The role of law in linking the validity and the facticity of norms has subsequently been applied and elaborated on in normative work on compliance mechanisms beyond the nation-state (Zürn and Wolf 1999). While this chapter endorses the link between the social and the legal, it does not share the normative thrust of the argument. That is, we do not elaborate on the problem of establishing an adequate problem-solving capacity of a political system based on law (Zürn and Wolf 1999, 282). Instead, we seek to trace the empirically observable process of norm construction and change. In the following, we elaborate on the core methodological innovations that constructivist approaches offer for this endeavor from both political science and legal perspectives.

We argue that an interdisciplinary politico-legal approach is particularly useful with a view to examining aspects of `European' constitutionalism. Within this framework, the ontological focus on norms provides a helpful methodological starting point for political scientists and lawyers alike. Both political scientists and lawyers are interested in questions of which norms have implications for practices and politics in the `European' polity. Yet the respective conceptual conclusions drawn from the empirical insight of an emergence of (social) norms differs as between political scientists and lawyers. While the former are primarily interested in how norms, through their impact on identities and interests, change actors' behavior in, say, decision-making, policy-implementing, or policy-planning situations, the latter are more specifically concerned with the normative range of norms, and in understanding norms as rules, standards or principles as well as the adjudicatory and allocative responses which they provoke. It is our contention that both perspectives taken together provide an excellent empirical starting point with a view to comprehending the `European' polity from a perspective that is not blurred by a touch of stateness. This position will be more specifically elaborated from the perspectives of social constructvism and legal constructivism respectively, in the remainder of this section.

Social Constructivism

It needs to be emphasized that there is no single shared constructivist approach either in international relations theory or in European integration. In the latter case where constructivist theorizing has only recently begun to become an issue, this point needs to be made more strongly. Instead of a general theory, constructivism is understood as an umbrella approach. It is a `middle-ground' on which specific theoretical interests merge and from which various research strategies emerge, respectively (Adler 1997, Checkel 1998). It has been characterized as a methodological practice of `establishing a middle ground' between the two poles of rationalism and reflectivism (Christiansen et al. 1999, 535-537). Engaging in this practice allows scholars to create an arena in which ontological shifts and meta-theoretical moves can be debated. For example, some maintain a strong interest in explaining decision-making, and generating hypotheses, albeit of a heuristic nature (Checkel 1999, Marcussen et al. 1999), while others are primarily interested in identifying the emergence of practices and concepts with a view to discussing their impact on political and legal processes (Koslowski 1999, Diez 1999). Crucially, the participating scholars do not necessarily share epistemological assumptions. They do, however, agree about the importance of the social for both understanding and explaining European integration (Risse and Wiener 1999: 776).

A core constructivist insight stresses the importance of communication and intersubjectivity in situations of decision-making and bargaining beyond the borders of nation-states to the fore (Kratochwil and Ruggie 1986). Actors act within an environment that is structured by the social that contributes, in turn, to shaping the structures of this very environment. The environment or the norms that emerge in this context have an impact on identities. In turn, identities influence interest formation and subsequently behavior. International relations scholars have, so far, referred to three types of norms. Regulative norms order and constrain behavior similar to rules. Constitutive norms create new actors, interests, or categories of action, and evaluative or prescriptive norms create the much less defined and often actually excluded category of oughtness, i.e. setting the standards for socially appropriate behavior (Katzenstein 1996: 5, Jepperson et al. 1995). The interdisciplinary approach pursued in this chapter argues that while for analytical reasons such distinction of types of norms may prove helpful in specific political situations, the emergence of norms in the `European' polity actually suggests a much more closely linked interrelation between types of norms.

This link emerges very clearly in studies of the acquis (Wiener 1997, 1998, Jørgensen 1998). Thus, it has been shown that the structuring power, and the ability to change of the acquis has long been grossly underestimated. The case of citizenship policy demonstrates particularly well, how a methodological bracketing of the acquis, i.e. de-linking it from its social environment, often produces misleading results. Studies that rely exclusively on a bracketed definition of the acquis fall short of assessing the meaning of genuinely `European' concepts, such as, for example, the concept of citizenship of the Union. That is, studies of citizenship that refer to the contents of the acquis without acknowledging its embedded structure will invariably miss the social processes (and cultural ideas) that preceded the legal stipulation of citizenship. Subsequently, they find the concept to entail a `deficit' (O'Leary 1995, Oliveira 1995). In turn, studies of European citizenship that seek to understand the meaning of citizenship by studying citizenship as a practice, including the ideas and policy objectives which have been formed in the process as part of the `embedded acquis communautaire' (Wiener 1998) have found the `European' concept of citizenship to be rather genuine, and see it as a potentially powerful challenge indeed to nation-state citizenship (on the crucial importance of embeddedness, see also: Chalmers 1999, 522). Studies of changing policy frames have similarly endorsed the importance of tracing the link between informal and formal resources of the acquis in the sector of environmental policy (Lenschow and Zito 1998).

In other words, by missing out on the social norms that precede the stipulation of legal norms, a gap emerges. Ignoring this gap may well imply a recurring touch of stateness, for example, by falling into the trap of `deficit' talk. In relation to the example on citizenship, one could make the following comments: the first approach entails a normative study which is infected by the touch of stateness; the second focuses on norms and can study the interrelationship between EU and national institutions in way which is free of that touch. To overcome this gap, it has been suggested that one could conceptualize the formal resources, that is, the shared legal and procedural aspects of the acquis, as embedded in a social environment. Informal resources such as ideas and social norms emerge in this environment through practices and routinization. These social norms potentially contribute to the formulation of legal stipulations, or the emergence of legal norms, if they may materialize. Analytically, the parts of the embedded acquis are best approached by identifying informal resources, routinized practices, and formal resources based on analyses of public discourse. It should be noted that while this approach does have an historical institutionalist bias, that is, it acknowledges historical contingency of institutions (Pierson 1996, March and Olsen 1998) it does not suggest a teleological development along a straight line from informal to formal resources. Instead, the formation of informal resources, such as social norms, and the stipulation of formal resources, such as legal stipulations, do not develop in a linear way. They are, however, interrelated through practices. Furthermore, it is important to note that even if social norms not included in the formal acquis, they still have a crucial role in the process of accepting legal norms. They have significant impact on rule-following and compliance (Zürn and Wolf 1999).

For example, studies in international relations have convincingly shown that norms have a pervasive power across national borders. For example, the increasingly globally shared perception of human rights norms has crucially influenced agency behavior in different countries in similar ways (Jacobson 1996, Klotz 1995, Soysal 1994). Thus the same norms have an impact on different actors and contexts. Equally, by examining actors' behavior in different contexts, it has been demonstrated that specific social norms have spread across borders. With a view to studying how norms matter to practices and processes in the `European' polity, we distinguish between two basic types of norms, namely social and legal norms. More specifically, we argue that the crucial contribution which interdisciplinary politico-legal research about norms has to offer is its ability to demonstrate the link between social and legal norms, and, subsequently to discuss the constitutional potential of norms.

This approach shares the assumption, that socialization matters to analyses of political decision-making (Risse and Wiener 1999, 776). Taking norms as the starting point, it follows the observation that social meanings are discursively constructed. As such discourse reflects institutional structures and helps to construct them in the process. Public discourse hence offers a crucial medium to assess the link between social and legal norms, or for that matter, the materialization of social norms in the legal sphere. Most generally, it has been observed that norms are profoundly `social' once they are shared (Klotz 1995). That is, communication about norms establishes their meaning and subsequently their impact. This broad definition of norms implies, for example, assumptions about behavior that are shared by the majority of individuals within a specific area, a decision-making process, a group, or, a nation. As such, norms can be crucial factors in decision-making processes. Indeed, Friedrich Kratochwil argues, for example, that `actors have to resort to norms' (Kratochwil 1989: 5; emphasis in the original).

A number of political and legal scholars have stressed the impact of `the social' on politics and policy-making in the EU. For example, it has been demonstrated that the perception and guiding force of world views and ideas, as well as processes of socialization, are each significant for accepting or resisting norms and are hence crucial to the assessment of legitimate governance (see, for example, Jachtenfuchs 1995, 1999, see also March and Olsen 1998). Equally, social ethics have been identified as shaping administrative processes (Everson 1998). In sum, it has been argued that socialization matters for political and legal processes of institution-building and decision-making. This insight crucially challenges rationalist assumptions of a `logic of consequentialism'. Instead, constructivists refer to the `logic of appropriateness' and/or the `logic of argumentative rationality' instead (March and Olsen 1998, Risse 1999). Both latter rationales for political decision-making are innovative in an important way for European integration studies in so far as they both involve a return to `the social'. Thus, appropriateness is measured against shared norms, whereas argumentative rationality proceeds from an assumption about a belief in moral virtues, which are to be maintained from, or achieved by way of, arguing. It is precisely at this point where social constructivist perspectives on norms (and the logic of appropriateness which they generate), on the one hand, and legal-philosophical perspectives on norms (and their normative range), on the other, will merge.

Legal constructivism

In the field of legal studies, it is in relation to the study of international law that constructivism has had probably its greatest impact, especially as regards interdisciplinary scholarship. The contribution of constructivism has been emphasized, for example, in the context of the broader agenda examining the interdisciplinary interactions of international relations and international law. More specifically, the potential of building interdisciplinary research agendas through the key insight that `actors, identities, interests and social structures are culturally and historically contingent products of interaction on the basis of shared norms' has been noted (Slaughter et al 1998: 384). It has been suggested that we should be looking to the development of research which will `develop convincing accounts of precisely how such structures are continuously formed and transformed by discursive practice, and how they continuously set the terms by which actors interpret their own and others' identities, interests and actions' (Slaughter et al 1998: 389). This suggestion follows from a focus on `the idea that norms and other intersubjective structures are "always in process"'. The same authors emphasize also the extent to which discursive practices in relation to arguments about shared norms are situated or embedded in deeper normative structures - which in the case of international law are enumerated (non-exhaustively, one presumes) as `states, sovereignty and anarchy' (Slaughter et al 1998: 389), for which one could read in the case of the law of the European Union `states, sovereignty and markets'.

For lawyers, constructivist accounts often have the particular merit of promoting a critical perspective upon the use of definitions in determining the proper scope of legal claims (Kingsbury 1998). Thus, similar to the various debates in international relations theory, critical constructivist work in legal studies is frequently posited in contrast to positivism, which would favor closed and fixed definitions of categories or claimants, on the basis of which the legal interpretative process proceeds. With a view to methodological innovation, a constructivist approach to the definitional task rejects the idea of universally applicable criteria. Instead it posits a `continuous process in which claims and practices in numerous specific cases are abstracted in the wider institutions of international society, then made specific again at the moment of application in the political, legal and social processes of particular cases and societies' (Kingsbury 1998: 415).

This contextualized definitional method can usefully be applied to the use of the term `constitution' in relation to the EU. In the first instance, `defining' the `European' constitution is itself a contested process. Initially, the method permits us to develop an approach which is sensitive to the `universal' abstract characteristics of constitutionalism in relation to the balancing of majoritarian power and individual rights within a structured institutional framework common to all liberal nation states and characteristic of civilised co-existence. But this abstract universalism stands in a creative tension to a second aspect of EU constitutionalism, namely the discursive specifics of ongoing European negotiations as a sui generis case of polity formation outside the nation state which results on identifiable formal outputs. In addition, it is possible to link issues of definition to the constructivist ontological focus on language and communication. Thus one could hypothesize that in the case of `European' polity formation, a constructivist approach is helpful precisely because the focus on communication through language proves to be a crucial factor. In this sui generis context, constitutionalism depends upon mediating the meanings of `new' institutions, norms, rules, etc. (see, for example Curtin and Dekker 1999) as well as upon adapting `old' institutions using a comparative method.

Constitutionalism depends also upon the constructive potential of the `community of law' which underpins the project of EI in both symbolic and practical terms. After all, the EU is a `pure creature of law' (Beaumont and Walker 1999: 170). It has no pre-political community out of which it has emerged as a polity. That insight does not, however, in itself guarantee a seamless and productive interdisciplinary enterprise in relation to the study of law and politics. For example, while political scientists have undoubtedly discovered the Court of Justice as a legal institution, some might doubt whether they have discovered `law' (Armstrong 1998: 155). Borrowing from Jürgen Habermas (1986), Kenneth Armstrong suggests that a fruitful interdisciplinary conceptualization of the role of law in relation to the EU will see `attempts to use law as a medium' confronting `the role of law as an institution'. Forces external to law will necessarily be mediated through law's institutional structure. In other words, law gives a different `reading' to social, political and economic phenomena because of its institutional structure which includes its normative qualities. In those terms, legal analysis can be about `bringing the law to bear' upon phenomena hitherto studied solely in `political' terms.

However, a legal-political constructivist analysis is a more ambitious enterprise, identifying and explicating the role of what might be termed the `spirit of the law' as a shared norm in relation to the EU. The dominant political science approach to the role of law and legal institutions has been to account for the compliance of the Member States (e.g. the work of Karen Alter: Alter 1998a, 1998b) to explain the phenomenon of `legal integration' involving the acceptance of EC law by national legal orders and national courts. But it is more sensitive to the specifities of law as a normative system to argue that:

`the processes of persuasion and justification on the basis of norms play a constitutive role in the formation of actors' identities and interests and in the structure of the international system itself. On a deeper level, this approach rejects a simple law/power dichotomy, arguing instead that legal rules and norms operate by changing interests and thus reshaping the purposes for which power is exercised' (Slaughter et al 1998: 381).

However, the `spirit of the law' - like many facets of the EU - displays a paradoxical character when observed more closely. The rhetoric of the Court of Justice may be primarily focused upon the integrative, unifying and cohesive force of the legal order. In practice, as it develops incrementally, that same legal order both tolerates and embodies aspects of disintegration, differentiation and disruption (Shaw 1996). This point emerges clearly from the narrative about EU constitutionalism, which has shifted from the so-called constitutionalization of the Treaties by the Court of Justice to the reconceptualization of the post-Maastricht EU as a constitutional order. Aspects of this narrative are covered in Section IV.

While the methodological approach of this chapter focuses on social norms, and their capability to materialise, and thus develop normative potential as legal norms, it should be noted nevertheless, that the theoretical approach employed in this chapter should be contrasted with a normative or ethical approach based on moral imperatives of social organization, and, especially, those which concentrate upon the European Union as an entity caught between nation states and processes of globalization (Habermas 1999). Others have characterized this shift as the so-called `normative turn' in studies of the European Union (Wincott 1998; Bellamy and Castiglione 1999), part of the vocation of which is to find `the politics' in integration studies and integration theory. Nor is this chapter an attempt to add to the literature which seeks to capture the `mixity' of the EU.3 Moreover, while MacCormick's work (e.g. MacCormick 1999), which is based on an institutional theory of law which does not privilege the nation state but is premised on plural sources of authority for the purposes of identifying the law, is a rich framework for assessing the specific character of the EU and its legal order as escaping the conceptual constraints of both national law and international law, it does not provide a full conceptual framework for assessing the mutual constitution of norms between legal and political actors. Also outwith our consideration is the question of technocratic efficacy and functionality, which in the view of some authors might lend some degree of legitimacy to the EU, such that its pursuit can likewise be seen as a normative imperative. Still less does this project lend support to the view that the EU should become more like a liberal democratic state, because only thereby can problems of legitimacy be solved. Indeed, our questions are not directly concerned with legitimacy at all, whether referring to that of the Union as a whole, its institutions, or the activities it pursues. Rather our questions represent twofold enterprise. They involve the meta-theoretical attempt to problematise taken-for-granted conceptions often fed into the study of the Union, such as `state', constitution or citizenship, for the one part, and the task of disaggregating the processes and actors involved, according to the guiding norms of this process, for the other.

In sum, constructivist approaches to European integration contrast with other approaches such as, for example, normative and conceptual approaches to the `European' constitution, as well as `integration-focused' approaches. While the latter struggle to escape stateness, for example, by focusing on what must be done to establish a European constitution, or by discussing the final shape of the European polity, respectively, constructivists do not focus on the whole. Instead, they propose referring to meta-theoretical approaches and new ontological perspectives, when studying European integration. Empirically, we suggest linking political and legal approaches on the basis of rules and norms that emerge from and structure the day-to-day practices of constitutional politics. We suggest that this approach has great potential for studying the processes and practices without falling into the trap of implicit recurrance to stateness in the `European' polity, precisely because of its focus on ontology. Thus, constructivists have begun to study the impact of identity, discourse, and norms and their respective impact on explaining and understanding the `European' polity (Christiansen et al 1999). The main implications of constructivism lie in the methodological tools that prove helpful for analysing processes of fragmentation (of concepts), as well as the process of differentiation (of legal regimes). As we will proceed to demonstrate, a focus on constitutional politics, understood as day-to-day practices in the legal and political realm as well as the high dramas of IGCs and new Treaties, provides an interesting case to prove the point. In the following section we turn to defining traditional approaches to constitutionalism and its role in nation-states and then proceed with a review of constitutionalist debates with reference to the `European' polity.

3 See, for example, authors whose work is rooted in legal and political philosophy, although the normative stipulations about the consequences of that mixity represent important insights in EU studies, Neil MacCormick (1997a, 1999) or of Richard Bellamy and Dario Castiglione (1997, 2000).

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