Miguel Poiares Maduro, Courts and Pluralism: The ECA, then, was no ordinary statute. Just as Community law takes the national constitutional identity of the Member States into consideration, national constitutional law must be adapted to the requirements of the Community legal order. The European Union cannot be considered a constitutional system in its own right because constitutional authority properly so-called must be traceable to the will of a self-governing demos. This is exactly where the Brexit referendum has put Britain.

The different national conceptions of constitutional identity illustrate the inherent and double tension in the definition of constitutional identity: The Act was enacted after Britain signed the Treaty of Accession through which it would become a member of the European Union Communities but before Britain ratified it. Constitutional identity is thus construed in a dialogical sense, primarily aimed at emphasizing crucial elements of constitutional identity in relation to EU law at This is exactly where the Brexit referendum has put Britain. In this sense, the challenge to both the European Union and moderate constitutionalism coming from populist movements and populist governments is not to be taken lightly or dismissed as simply illegitimate. Yet this decision is so self-evident that it is difficult for politicians or observers to spell out its exact consequences.

It may be there has never constittution a statute having such profound effects on so many dimensions of our daily lives. It insists on the ability of a political community to decide on its political form as an independent entity.

Nonetheless, national identity does not function as a categorical trump card, but structures and inspires the proportionality inquiry justifying a derogation from EU law.

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But the Schmittian political philosophy seems to fit well with their own—less articulate, to say the least—ideology. More often than not, what is there to be found is a recognition, an acknowledgement—often by representatives—that the choice has been made. They need to be addressed separately. The ECA, then, was no ordinary statute. In the UK, the majority in Miller expressed the view that the principles of European Union law as expressed in Costa v.


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artjcle Rather, a constitutional intention can be incorporated in an ongoing process of constitutional change, albeit—as maybe in the case of Brexit—with a serious swerving effect. That populist and nationalist —anti-globalization— projects do not appear so far as being successful beyond their electoral success in some countries may be evidence that they set the autonomy claim at the wrong level.

The vote had a politically normative impact. But using the idiom of constitutional law comes at a cost: For instance, there is of course some politics taking place in the European institutions. Instead, through constitutional identity, a dialogical exchange in constitutional terms serves to strengthen the interdependence between the national and supranational legal orders at The first part treats constitutional identity as a norm of resistance.

We can see this at play with the Brexit vote. The Act was enacted after Britain signed the Treaty of Accession through which it would become a member of the European Union Communities but before Britain ratified it. A distrust of popular sovereignty has been apprehended as the reason for the lack of a constituent power. Jumping forward to the national identity provision in the Treaty on the European Union, a textual reading of the TEU can raise problems: Yet it is unclear how it should be interpreted in legal terms.

This is a rerun of a time-worn conservative strategy: Close mobile search navigation Article navigation.

Yet I am far from claiming that the leave vote, or any other significant act of will following it, is actually a constitutional decision, for reasons I will explain now. The internal functioning of identity is related to the integrationist objective constutution a national constitution, furthering a collectiveness: This section offers a structured analysis of constitutional identity as it figures as a legal concept in these countries.


Lessons from and for the world. This does not seem to stand examination. The European Union is not meant to work in reverse gear.

In other words, the ECA is only a conduit pipe: On one hand, adhesion and its legal vehicle a treaty.

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This face off explains why, whatever may happen in the future, Brexit cannot be a full success. In the second section of the second part of the book, Millet relates his findings on constitutional identity as a norm of convergence and a norm of resistance to a broader framework. Millet connects this position of ordered pluralism to the theories of Miguel Poiares Maduro 32 and Matthias Kumm at33 Maduro has developed a discursive approach to pluralism, suggesting that the constitutional reasoning by both European and national courts should be constructively engaged with one another.

article 88-1 de la constitution dissertation

Since the Community has conferred powers only, it must tie an international agreement to a Treaty cohstitution which empowers it to approve such a measure. Constitutional identity hence does not solely express a universalist set of ideals as expressed through a constitutional text, but incorporates particular elements connected to the cultural and historical background of the state in question. There is reason to think that the result of the referendum reads as a constitutional decision in the sense Carl Schmitt gave to that expression: Schmitt is the grand master of intellectual mauvaise foi.