Available now: Oliver Gerstenberg's Euroconstitutionalism and Its Discontents

*Attend the launch event on Friday 7 December*

This book is about two questions and their interconnections. The first is the question of social constitutionalism, especially with regard to its role in the contemporary European project. For reasons of history and democracy, Europeans share a deep commitment to social constitutionalism. But in the contemporary European constitutional debate, constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. Authors in the tradition of ordoliberalism have celebrated the Europeanization process because it seemed to ultimately disconnect constitutionalism from democratic practice and to firmly entrench a logic of market evolution that marginalizes politics. Social democrats, by contrast, have come to believe that democracy can only flourish if the solidary politics of the nation retains its sovereignty against cosmopolitan, ‘constitutional’ intrusions from without. Proposals to deepen constitutional integration in the EU therefore give rise to the social-democratic objection. This book explores various responses to this conundrum, including a democratic-experimentalist alternative.

The second question addresses tensions between constitutionalism and democracy more broadly. This book challenges the common view that constitutionalization means de-politicization. In contrast, and drawing on a debate today underway on both sides of the Atlantic if not globally, this book argues that constitutional courts generally can exert a more indirect, forum-creative, and agenda-setting role in the process of an ongoing deliberative clarification of the meaning of a right as experience accumulates and the understanding of constitutional and moral principles deepens in time. Counterintuitively, the retreat from judicial supremacy becomes the most promising and efficient route towards vindicating fundamental and social rights in morally complex and diverse societies.

This book brings both these themes together by suggesting that in fact the European Court of Justice (CJEU) and the European Court of Human Rights (ECtHR)—as courts beyond the nation state—are able constructively to re-open and re-politicize controversies that may appear settled at the national level in their constitutionalizing jurisprudence. And, crucially, our understanding of shared European constitutional principles is itself subject to revision and reconsideration as we accumulate experiences of dealing with diverse national contexts.

By examining the jurisprudence of the CJEU and the ECtHR, the book demonstrates that in domain after domain, ranging from the protection of the vulnerable in the European social market to the guarantee of freedom of conscience, which in Europe emerged after many centuries of religious persecution, both courts can enhance and deepen democracy and thereby encourage the democratic and liberal project of constitutionalism beyond the state. Over time, once interpretive answers have become established in practice, courts can then move towards stronger forms of judicial intervention that consolidate best practice. It is this democratic and experimental process which lies at the heart of the distinctive model of contemporary Euroconstitutionalism.

• Dr Oliver Gerstenberg is a Senior Lecturer in Laws at UCL Laws and Fellow of the UCL European Institute.
• Euroconstitutionalism and its Discontents has been published by Oxford University Press. Attend the launch event on Friday 7 December.