The Common European Constitutional Culture

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Introduction

The fundamental postulate from Lisbon Treaty 2007 and other basic EU’s acts is to make “an ever closer Union among the peoples of Europe” (Art 1) and empower its citizens to participate in processes of will-formation because the rule of law and the principle of democracy have the same source of their legitimacy, notably, public spheres. Thus unleashing normative premises of institutionalization of discourse occurs Janus-faced as it runs towards the human rights interpretation and recognition, that means, it results in the interplay between universalizable normative claims and their interpretation coloured with the ethical fibre – be it national, ethnic or cultural.

Nevertheless, processes of Europeanization have been proceeding on the legal level basically, wherein the prominent role was casted by the CJEU, and also on the level of intergovernmental decision-making. In the aftermath of such a proceeding the EU may be comprehended in terms of the rights-based union and problem-solving entity though the emergence of the values-based community has been stymied and the transnational public spheres are rather thin. In other words, the ethical fibre became crumpled up or at least huddled for the effective governance performance what caused a democratic deficit and gave rise to debates on the EU as a post-democratic polity. There are disputes whether this oddity of the EU indicates its nobility or perversion, but the fact remains, that the Eurocitizens, in their post-sovereign states, became lost in the Hegelian extreme terms of the universal-formal rights (including the ECJ rulings in the Viking and Laval cases) and the individual interests what made them especially exposed on the economic crisis shocks.

The most important task carried out under the book is to undertake theoretical and jurisprudential research on the interrelations between the sense of the individual identity and the sense of national identity (including constitutional one) and the search for a common European legal culture. The outcome of the study in question will be a proposal of the foundation for a new paradigm of the EU law taking into account all of the said manifestations of identity. One of the main generators of the contemporary changes in the processes of globalization and legal integration is the specificity of constructing the law, namely its argumentative creation and application to specific situations, taking into account both the tradition and current claims to validity of one’s national legislation and its national recipients, and then confronting it with the diversity of legal systems developed by other states, supranational or international institutions. This ← 7 | 8 → process may lead to some vital questions about the community and the nature of the political community whose rightful member one could become. The current paradigm of law, which has provided for civil rights in the Western tradition already since the times of Kant, has resulted in the vision of Europeanization only through legal and institutional integration. This, in turn, led to the collapse of civic integration, as manifested in the phenomenon of “democratic deficit” or a “crisis of public legitimacy” in the European Union. This generated the need for a new paradigm which will expressly take into account the widely discussed postulate (mostly in public institutional structures) of the empowerment of citizens and the requirement to provide national identity, while seeking and promoting a common legal culture. The proposed change of the paradigm of law recognizes the EU law through the prism of the references to the vision of the Roman republic, where the key role was played by the citizen. The condition for creating such a common legal culture is thus the development of the processes of formulating public justification for normative claims which is to be uniformly binding for us. The processes of formulating public justification will also possibly criticise the moral and ethical beliefs of all the creators and, at the same time, recipients of the EU law (i.e., those that come from all the EU Member States), as to arrive at such law and such an interpretation of the sources of common law which can be regarded as a common and thus unifying rather than separating cooperative goal of the EU citizens. The concept of the European citizenship will gain an actual content if the said European identity, and thus also the sources of the legal legitimation of the EU legal system, become actually “communitised”, that is discursively determined in the processes of cooperative interpretation of the public politico-legal culture. This will perhaps allow, on the one hand, to overcome the contemporary crisis of the identity of the individual (understood as a rightful citizen having an actual influence on his or her rights and duties) while, on the other hand, to resolve and settle the emerging (or better yet – existing) conflict between the national identity and the European identity.