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The Legal Theory of the Juridical Coup: Constituent Power Now

Published online by Cambridge University Press:  06 March 2019

Luigi Corrias

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In a thought-provoking article, Alec Stone Sweet put forward a problem he called the juridical Coup d'État. His work was the opening of a debate to which Neil Walker, Wojciech Sadurski and Gianluigi Palombella contributed. In a subsequent essay, Stone Sweet responded to their comments. In this article, I would like to sketch this debate and explore its significance for legal theory. It is my hypothesis that the problem of the juridical coup is closely connected with the relationship between constituent (constituting) and constituted (constitutional) power. Moreover, the juridical coup shows in an exemplary way how this relationship should be understood. Before addressing the problem in these terms (Section C), analyzing an additional example of a juridical coup in EU law (Section D) and developing my own position vis-à-vis the different contributors (Section E), in the following section, I will give an overview of the argument of Stone Sweet. Taking into account the wealth of issues raised by him, I will concentrate on those aspects of his essay that are of most interest from a legal-philosophical point of view. Thus, the first question to be answered is: What are we to understand under a Juridical Coup d'État and what is its theoretical importance?

Type
Articles
Information
German Law Journal , Volume 12 , Issue 8 , 01 August 2011 , pp. 1553 - 1572
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 Sweet, Alec Stone, The Juridical Coup d'État and the Problem of Authority, 8 Germ. L.J. 915 (2007).Google Scholar

2 Walker, Neil, Comment, Juridical Transformation as Process: A Comment on Stone Sweet, 8 Germ. L.J. 929 (2007).Google Scholar

3 Sadurski, Wojciech, Comment, Juridical Coups d'état—All Over the Place. Comment on “The Juridical Coup d'état and the Problem of Authority” by Alec Stone Sweet, 8 Germ. L.J. 935 (2007).Google Scholar

4 Palombella, Gianluigi, Comment, Constitutional Transformations vs. “Juridical” Coups d’ État. A Comment on Stone Sweet, 8 Germ. L.J. 941 (2007).Google Scholar

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6 Sweet, The Juridical Coup d'État and the Problem of Authority, supra note 1, at 915.Google Scholar

7 Id. Google Scholar

8 Id. at 916.Google Scholar

9 Id. Google Scholar

10 See id. “Scholars can reconstruct the legitimacy of the post-coup legal order, and of judicial authority within it, but only in terms of the new Basic Norm and the new Rule of Recognition. The old Norm and the old Rule, once overthrown, cannot provide the normative basis for the way the new legal system evolves after the coup.“ Id. Google Scholar

11 Id. at 918.Google Scholar

12 Cf. id. at 919 (defining an authority conflict as “a governance situation in which the organ empowered to make (or give content to) the law has no direct, jurisdictional means of obtaining obedience from a second organ, whose exercise of authority is necessary to render the law made by the first organ effective”).Google Scholar

13 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Case No. 1 BvR 400/51, 15 Jan. 1958, 7 BVerfGE 198.Google Scholar

14 See Sweet, The Juridical Coup d'État and the Problem of Authority, supra note 1, at 921 (“The bottom-line issue is about authority: once the Rechtsstaat has been constitutionalised, how can it be defended, given the fragmented structure of judicial authority? The FCC enlists all judges in the project then commands: ‘thou shalt balance’ … . When the FCC overrules them, it is on substantive grounds.”).Google Scholar

15 See id. “Even the most fervent supporters of Lüth acknowledge that balancing is a relatively open-ended exercise in judicial policymaking. If balancing leads the judge to a choice from among at least two (legally-defensible) policies, why should the FCC possess the power to impose its preferred policy on the courts closest to the dispute—and to the law being interpreted?” Id. Google Scholar

16 Conseil constitionnel [CC] [Constitutional Court] decision No. 71-44DC, 16 July 1971, Rec. 29 (Fr.).Google Scholar

17 Sweet, The Juridical Coup d'État and the Problem of Authority, supra note 1, at 919.Google Scholar

18 Case 6/64, Costa v. ENEL, 1964 E.C.R. 1251.Google Scholar

19 But see Walker, supra note 2, at 931.Google Scholar

20 See Sweet, The Juridical Coup d'État and the Problem of Authority, supra note 1, at 926 (“Today … supremacy and direct effect, ultimately, are about the effectiveness of EC law, but ‘effectiveness’ has had no ultimate endpoint. Instead, the Court has steadily intruded on domains previously thought to be immune to its reach; consider doctrines associated with rights, state liability, and effectiveness of remedy.”).Google Scholar

21 See id. (“The ECJ can command that national judges interpret and apply EC law as it does, but it cannot force them into following its lead. In Europe, a great deal of judicial governance proceeds on this absence of coercive authority, because it proceeds in the absence of normative authority.”).Google Scholar

22 See id. (“As it stands, all basic authority conflicts between the ECJ and national judges are irresolvable under the present Art. 234 system.”). Stone Sweet first points to what he calls “the classic supremacy problems: how to protect rights, settle Kompetenz-Kompetenz issues, and determine when the acte claire doctrine ought to apply.” Id. He also indicates day-to-day issues like the required proportionality tests in the fields of free movement of goods and indirect sex discrimination.Google Scholar

23 Id. at 927.Google Scholar

24 Id. Google Scholar

25 See id. at 916 (explaining that “Kelsen himself equated the idea of ‘successful revolution’ with a change in the Basic Norm”).Google Scholar

26 Hannah Arendt, On Revolution 12 (1973).Google Scholar

27 Id. at 21, 34 (describing “the experience of man's faculty to begin something new”).Google Scholar

28 Id. at 28.Google Scholar

29 Id. at 50.Google Scholar

30 It is actually quite difficult to find any textual evidence for the claim that Rousseau invented the concepts of constituent and constituted power. See Jean-Jacques Rousseau, The Social Contract, in The Social Contract and Other Later Political Writings 39, 49 (V. Gourevitch ed. and trans., 1997) (“[B]efore examining the act by which a people elects a king, it would be well to examine the act by which a people is a people. For this act, being necessarily prior to the other, is the true foundation of society.”).Google Scholar

31 See Emmanuel-Joseph Sieyès, What is the Third Estate? 126 (1963) (“The national will … never needs anything but its own existence to be legal. It is the source of all legality.”). Since it has no consequences for the argument, in this article, I will make no distinction between nation and people.Google Scholar

32 Cf. Antonio Negri, Insurgencies: Constituent Power and the Modern State 1 (1999) (“To speak of constituent power is to speak of democracy.”).Google Scholar

33 See Sieyès, supra note 31, at 119 (“If we have no constitution, it must be made, and only the nation has the right to make it.”).Google Scholar

34 Ernst-Wolfgang Böckenförde, Die verfassunggebende Gewalt des Volkes—Ein Grenzbegriff des Verfassungsrechts, in Staat, Verfassung, Demokratie. Studien zur Verfassungstheorie und zum Verfassungsrecht 90, 95 (1991).Google Scholar

35 Sieyès, supra note 31, at 124.Google Scholar

36 See id. at 127–28 (“We must conceive the nations of the world as being like men living outside society or ‘in a state of nature,’ as it is called.”).Google Scholar

37 See id. at 137 (“If it is to accomplish its task, the representative body must always be the substitute for the nation, itself.”).Google Scholar

38 Cf. Carl Schmitt, Verfassungslehre 79 (1970).Google Scholar

39 Cf. Arendt, supra note 26, at 19–20 (“For, the hypothesis of a state of nature implies the existence of a beginning that is separated from everything following it as though by an unbridgeable chasm.”).Google Scholar

40 Case C-105/03, Criminal Proceedings Against Maria Pupino, 2005 E.C.R. I-5285.Google Scholar

41 See Treaty on the Functioning of the European Union art. 288, 1 Jan. 1958.Google Scholar

42 Case C-105/03, Criminal Proceedings Against Maria Pupino, 2005 E.C.R. I-5285, para. 34.Google Scholar

43 Id. at paras. 36–38, 41.Google Scholar

44 Id. at para. 42.Google Scholar

45 Sweet, The Juridical Coup d'État and the Problem of Authority, supra note 1, at 915–918.Google Scholar

46 Valsamis Mitsilegas, Constitutional Principles of the European Community and European Criminal Law, 8 Eur. J.L. Reform 303, 309 (2007).Google Scholar

47 Dutch legal scholar René Barents even went so far as to compare the importance of the Pupino ruling for the third pillar with that of the Van Gend en Loos judgment for the first pillar. See R. Barents, Noot onder het Pupinoarrest, 14 Sociaal-Economische Wetgeving 74 (2006).Google Scholar

48 See Mitsilegas, supra note 46, at 311 (“It [the ruling in Pupino, LC] is also irrespective of the degree of integration the States signatory to the Amsterdam Treaty wished to achieve in criminal matters—the Court dissociates the envisaged degree of integration from the need of ensuring the effective achievement of Union objectives.”).Google Scholar

49 Case C-105/03, Criminal Proceedings Against Maria Pupino, 2005 E.C.R. I-5285, para. 24.Google Scholar

50 Id. at paras. 25–26.Google Scholar

51 Id. at para. 26.Google Scholar

52 See Mitsilegas, supra note 46, at 312 (“The impact of the application of the interpretive obligation of the national judge in this case is striking. The Luxembourg Court has in reality re-written the Italian Code of Criminal Procedure.”).Google Scholar

53 Barents, supra note 47, at 77–78.Google Scholar

54 My understanding of the relationship between constituent and constituted power is close to that of Hans Lindahl. See, e.g., Hans Lindahl, The Paradox of Constituent Power: The Ambiguous Self-Constitution of the European Union, 20 Ratio Juris 485 (2007).Google Scholar

55 This “logic of implication” may be discerned in many places in the case law of the ECJ. For an analysis, see Luigi Corrias, The Passivity of Law: Competence and Constitution in the European Court of Justice (2011).Google Scholar

56 See Sweet, Response, supra note 5, at 951 (“[I]n the three cases I identified, the judges did not bother themselves much with legal text or precedent. The GFCC and the ECJ based their decisions on new theories of the constitution.”).Google Scholar

57 See Arendt, supra note 26, at 38–39, 155.Google Scholar

58 See generally Sweet, The Juridical Coup d'État and the Problem of Authority, supra note 1.Google Scholar

59 Cf. Palombella, supra note 4, at 944.Google Scholar

60 See Sadurski, supra note 3, at 937.Google Scholar

61 Cf. Palombella, supra note 4, at 941.Google Scholar

62 Cf. Sweet, Response, supra note 5, at 947 (“In each system, a court had moved to confer upon itself new constitutional-jurisdictional authority, in the course of performing its delegated adjudicatory tasks; and these rulings gradually provoked systemic transformation.”). A little further, he adds: Id. at 949. Finally, making the link between the juridical coup and constitution-building: “The judges that instigated my coups conferred upon themselves new expansive capacities to ‘complete’ constitutions, displacing constituent authority as regulators of constitutional development. Hovering above every coup, it seems, is the specter of judicial supremacy—over constitutional development—and in Europe supremacy is rarely a focus of theorists.” Id. at 952.Google Scholar

63 See Walker, supra note 2, at 930–31.Google Scholar

64 Id. at 932.Google Scholar

65 Sadurski, supra note 3, at 939; see also Walker, supra note 2, at 931–32.Google Scholar

66 Sadurski, supra note 3, at 935.Google Scholar

67 In the context of the EU, here lies an important role for the Constitutional Courts of the Member States. Without their support, it is difficult to imagine how the ECJ can continue to make such far-reaching decisions as it does now. See Monica Claes, The National Courts’ Mandate in the European Constitution (2006) (explaining this issue); Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (2005) (explaining this issue).Google Scholar

68 Sweet, Response, supra note 5, at 952.Google Scholar

69 As Hans Lindahl and Bert van Roermund have strongly argued, this is exactly the function of the Basic Norm in Kelsen's work. See Lindahl, supra note 54, at 488; Roermund, B. van, Authority and Authorisation, 19 L. & Phil. 201 (2000).Google Scholar

70 For more on this point, see H. Lindahl, Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood, in The Paradox of Constitutionalism 9 (Martin Loughlin & Neil Walker eds., 2007) and B. van Roermund, First-Person Plural Legislature: Political Reflexivity and Representation, 6 Phil. Explorations 235 (2003).Google Scholar

71 I would say that the EU is a case in point. See Corrias, supra note 55.Google Scholar