The Political Dimension of Constitutional Law

Fundamental law is a politicized species of law which is incompatible with a firm separation between law and politics and a strict differentiation between legal reason and political reason. There is a correspondence between fundamental law and the world of the political, a world which, even though advanced through the language of law, shapes the conditions of human existence by establishing structures of authority and obedience and framing what is just or unjust, good or evil, right or wrong. The conflicts that emerge in that world—which at its core concern contestable expressions of fundamental law—are articulated through the medium of constitutional discourse. Those conflicts should not be approached solely as matters of legal interpretation since their settlement necessarily involves political judgment.

What if political right, or fundamental law, were a distant star already dead, but whose brilliance we still capture in a world submitted, however, to a very distinct kind of domination, predominantly managerial and administrative in nature? This is the disturbing hypothesis that Martin Loughlin advances in his work on the formation and decline of political right, a discipline that emerged at the dawn of modernity in order to frame the legal and political rationality of national and centralized states, but which would subsequently be dislodged by the gradual establishment of constitutional legality and administrative rationality.

If in drawing this decline the work of Loughlin has a somewhat archaeological inclination, the truth is that at the same time it provides us with a relevant proposal for understanding current constitutional theory and law, that is, the hypothesis of a dualist structure of the main concepts that make up public law and the constitutional state. This structure ultimately depends on a distinction between what is constitutive and what is constituted in a political community, and even more so on the hypothesis that this distinction is itself constitutive of the very possibility of a political community.

What is the relationship of interpretation to decision? Many scholars believe that decision marks the limit of law, the point at which doctrine no longer determines judicial outcomes. Others believe outcomes are the result of political contests between sociologically identifiable groups. Theorists seem to have to choose between legal apologetics and political critique. Rejecting both views, this article argues that decision is a necessary condition of interpretation. It engages with Carl Schmitt’s claim that “Every political idea in one way or another takes a position on the ‘nature’ of man and presupposes that he is either ‘by nature good’ or ‘by nature evil.’” The decision of law is not about the state of the soul, but about the narrative frame. Legal interpretation begins with a choice between project and system. A project locates the origin of order in the deliberate act to realize an idea; a system believes order to be spontaneous and immanent. Writing a constitution is a project; the common law is a system. To interpret law as a project is to see man as naturally evil, for absent a plan we will have only the chaos of the state of nature. To interpret law as a system is to see man as naturally good, for he need only be himself for the regularities of law to emerge. This is the decision that grounds interpretation and, therefore, lies behind every legal claim and legal theory.

This chapter explores the dimension of constitutional law composed of constitutive concepts, such as national sovereignty, the people and the concept of Constitution itself. That dimension can be considered as a political-theological dimension in the sense that constitutive concepts are analogous to theological concepts. Both have a negative and anticipatory significance, bearing in mind their understanding in the light of negative theology. In this light, political theology is not to be understood in the terms proposed by Carl Schmitt.

Informal constitutional change refers to a change in the normative meaning of the constitution, which occurs without following the procedure for constitutional revision. Theories of informal constitutional change often bolster the argument for a political approach to constitutional law that is sometimes described as “political law”—with a certain degree of ambiguity. In that way, constitutional law cannot be reduced to the study of the written constitution and its interpretation by a judge. Indeed, political law consider the political practice and constitutional interpretation. However, the political approach to constitutional law can pursue very different, more or less prescriptive, objectives since it serves at once to define the constitution, and produce certain representations of constitutional law.

Certain constitutional courts assign, “on shot” or step by step, normative content to constitutional provisions, modifying them without altering the text, under the pretext of interpretative activity. In consequence constitutional provisions tend to lose their normative identity as law decided by a constituent legislator, legitimized by popular vote and instead begin to assume different and even contradictory shapes determined by judicial rulings which generate the juridical uncertainty of a “liquid constitution”. Those rulings can be described as “impure” constitutional changes since they transpose the constitutional normative reservation, break the principle of constitutional rigidity, twist the limits and techniques of the interpretive function, and make political choices incompatible with the passivity and impartiality of a jurisdiction. In this context, this paper addresses some remedies or other forms of containment of impure informal changes.

Ordoliberalism is a German doctrine of law and political economy that has been influential in the self-definition of German economic and political system after the second world war. Though a product of the Weimar Republic crisis, ordoliberalism could be developed as a school and be displaying its practical impact only once a new democratic Germany had to be rebuilt from the ruins left by the totalitarian State. It was moreover instrumental in projecting and shaping the European community as a free market area, somehow disembedded from welfare nation-States. The basic functionalist legitimacy it offered to political authority indeed proved very powerful in the case of supranational institutional engineering. However, for several years such school of thought remained ignored in the narratives offered of European integration and its ideological motives. This article tries to reintegrate ordoliberalism in the narrative of European Union evolution especially by showing the centrality of such school of thought within the predicament of a polity under conditions of severe social (and national) pluralism. The article is also meant as a first attempt of a more general thesis: That ordoliberalism offers a foundational model, indeed a political theory, for a political right without politics, or, said differently, for a social contract without people.

This chapter reconstructs the content of the key norms and practices constituting and disciplining public power in the Eurozone. On the one hand, the fundamental substantive norms uphold the primacy of private property, entrepreneurial freedom and sound money. On the other hand, a series of procedural norms fragment, enervate and pulverise the power held by representative institutions and decision-making processes, and result in the selective empowerment of collectives of executives, central banks and key actors in the financial sector. The abstract and concrete weight assigned to economic freedoms, the multiplication of decision-making procedures alternative to representative decision-making, and the entrenchment of structural biases in favour of private property and entrepreneurial freedom have largely “taken the risk out of democracy” by fragmenting, enervating and pulverising public power.

Against a depoliticized position that views the monetary union as the realm of epistocracy, strong economic and political bias and emergency decision-making, this contribution seeks to present the overall political and democratic challenges emerging from a more centralized, expert-based and politically sensitive European economic and monetary union. Courts are already responding to these challenges. Rather than interpreting democratic politics at the national and the European level as the two clashing forces preventing each other, the view is that both are part of a continuum of political ruling that requires political sensitivity, a sense of political purpose and overall transparency. For this also, economic governance cannot be seen only as the embodiment of strict rules and compliance procedures.