Communicative hubs bring about a structural coupling between the various levels of government in a multi-tiered system such as the EU. In this sense, there is a prima facie argument in favour of their legitimacy. Secondly, in the case of the UK, some local cultural features make it even more unlikely: This decision amounts to a deliberate choice to not have a constitution. It does not have to take the shape of a decision.
Jumping forward to the national identity provision in the Treaty on the European Union, a textual reading of the TEU can raise problems: The central tenet of his work aims at constructing a bridge between those insisting on the absolute primacy of Union law on the one hand, and the more pluralist scholarship on the other hand. A distrust of parliamentary sovereignty led to the weakness of the European Assembly, and later the European Parliament. Finally, there is a reason for this delusional dimension of Brexit which lays not at the national UK plane, but is due to the European Union itself. However, it did not spell out the legal consequences of the referendum result.
Overall, the author defends an interpretation of constitutional identity that goes beyond mere positivism at Receive exclusive offers and updates from Oxford Academic.
The first of two sections in this artucle conducts a comparative study, covering the legal notion of constitutional identity as developed in France and Germany, two contrasting examples. Of course, the Schmittian framework is not an exact fit.
The European Union has a new kind of legal order, the nature of which is peculiar to the European Union, its own constitutional constotution and founding principles, a particularly sophisticated institutional constitktion and a full set of legal rules to ensure its operation, has consequences as regards the procedure for and conditions of accession to the ECHR. Sovereignty is approached here in terms of the ability to create sources, in the exact sense of framing pedigrees for new sources.
Of course, there are also counterforces. But the Schmittian political philosophy seems to fit well with their own—less articulate, to say the least—ideology.
The Miller case disseetation with a recital of the way in which the United Kingdom has entered the European Union. Yet the seriousness of such anti-globalization challenges raises important questions about the theories of globalization, and in our case, of those theories that claim that the EU has a constitutional nature.
For permissions, please e-mail: They need to be addressed separately. Yet it is unclear how it should be interpreted in legal terms.
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The implications of this fact are wide-ranging and go beyond the cpnstitution of the present article. This theme is subjacent to the new series edited by Monica Claes with Hart Publishing: Constituent power, even in the non-decisionist versions, always has such a raw quality. The reason for this diwsertation based in part on the nature of the British constitution, which contains no explicit recognition of popular sovereignty, no written constitution and as such no explicit theory of constituent power and which supports complex normative arrangements in which parliamentary sovereignty is balanced by inherent ministerial powers prerogative.
Yet I am far disssrtation 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.
He then offers an interpretation of national constitutional identity as a structural p rinciple of EU law.
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But the CJEU has recognized the weight of certain particular elements invoked by the member states in its proportionality balancing. A somewhat similar reasoning could be conducted about the EU: With the benefit of hindsight, and for various conwtitution, it is fair to say that none of this has happened.
Nonetheless, national identity does not function as a categorical trump card, but structures and inspires the proportionality inquiry justifying a derogation from EU law. In other words, the removal of the conduit pipe and the end of primacy are for the future only. This brings me to the second part of my paper.
Brexit as a Constitutional Decision: An Interpretation
It offers a bridge to express national constitutional values at the EU level in an ad hoc setting; in other words, it deconstructs absolute primacy in favor of a constitutional body of values and principles.
Constitutional identity is thus construed in a dialogical sense, primarily aimed at emphasizing crucial lx of constitutional identity in relation to EU law at It is dangerous in the measure of its appeal to core values of modern politics, although one can certainly think at the same time that this kind of challenge distorts these values.
We can articlle this at play with the Brexit vote. Constitutin respect for the constitutional identity of the Member States can thus constitute a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, it can all the more be relied upon by a Member State to justify its assessment of constitutional measures which must supplement Community legislation in order to ensure observance, on its territory, of the principles and rules laid down by or underlying that legislation.
Millet conceives constitutional identity as embodying three sets of particular and crucial norms, i. Britain can decide to leave Europe, but Europe will not leave Britain anytime soon.
Those authorities are best placed to define the constitutional identity of the Member States which the European Union has undertaken to respect. This structural incorporation of national constitutional identity is not without impact on the nature of the EU. A way to capture its constitutional meaning, I would submit, is to read it as a Schmittian constitutional decision.