LSE Law School, Lunch Seminar

Jan Komárek: The imaginary factory: Constitutional scholars and EUrope’s constitutionalism

Blurb: The book, whose introductory chapter will be presented at the seminar, examines how constitutional scholars and their ideas on European integration contributed to making constitutionalism the key imaginary during the time of Europe’s deep transformation in the 1990s. It inquires whether this imaginary has survived the crises and challenges facing the European Union since 2009. The book also seeks to understand what it takes to turn constitutionalism into an ideology that conceals some deep problems at the heart of the Union. Its central aim, however, is not to provide yet another reform proposal. The book intends to offer a better understanding – of constitutionalism in Europe, but also of us, constitutional scholars.

Extended abstract: The “constitutionalisation of Europe”  began before the collapse of communism in East and Central Europe in 1989, but its success at the turn of millennium would not be possible without the emancipation of “the Other Europe” from the Soviet Empire and the former’s desire to join the EU – the surest guarantee of its belonging to the utopian “West”.  The triumph of liberalism and free market capitalism allowed the EU to embark on the path towards ‘an ever closer union among the peoples of Europe’  that would be guaranteed by a written constitution and governed by a set of rules and institutions that resembled the state much more than an international organization, however “advanced”.  The failure of the “Constitutional Treaty”  in 2005 predetermined the end of this era, which eventually came with the Eurocrisis.  This book argues, however, that constitutionalism as imaginary has never disappeared: it has only lost its ideological power.

The distinction between constitutionalism as imaginary and as ideology and is central to the book. By that I want to grasp, analytically and critically, the difference between “shared beliefs” that any legal and political system must maintain to enable collective government through law on the one hand, and, on the other hand, oppressive delusions that allow unjustified dominance by some over others.  I also want to identify ideological effects of constitutional scholarship and the possibilities of it becoming more reflective and conscious of such effects.

Constitutional imaginaries are examined using the ‘cultural study of law’ approach, developed by the US constitutional scholar Paul W. Kahn.  It situates itself on the line between “internal” and “external” analysis of law, seeking to understand the meaning of the commitment to the rule by law, without being either “reformist” or “doctrinal” on the one hand, or descriptive, seeking causal explanations, as some sociologists or historians want to do on the other hand.

This analytical framework is used primarily to illuminate the key contributions by constitutional scholars between 1980 and 2009, as they are, in Europe, the principal ‘spokespersons’ for its imagined rule by law.  The book’s title The imaginary factory alludes to the name sometimes given to Hollywood: the illusion factory.  If there ever was a Hollywood of EU constitutional law,  one would probably find it ‘in the hills of Fiesole between Badia Fiesolana and the Villa Schifanoia, the home of the law department of the European University Institute (EUI)’.  The book however looks beyond that place, sometimes into rather unexpected places, such as the Faculty of Law of the Charles University in Prague, or the University of Michigan Law School. It will argue that to really understand the process of constitutionalisation and its ideological effects in the 1990s, one must explore the EU’s “other” – be it the post-communist Europe, the United States, or possibly, other international organisations, especially the World Trade Organisation (WTO).

The distinction between constitutional imaginary and ideology will also help us understand the Union’s present. Some see the long period of crises as a good opportunity to resurrect some old ideologies, so that Emergency Europe  is “normalised” in constitutional terms, with lawyers and the Court of Justice as the main drivers of this process again. This book will hopefully show that it will be a futile effort: we, constitutional scholars should know better.