Chapter
3.2.2 Referring to precedents which interpret the constitution
3.2.3 Interpreting the constitution in the light of doctrinal concepts and principles
3.2.4 Arguments from silence
3.3 Evaluating arguments: arguments from beyond the legal context
3.3.1 Relying on the objective purpose of the norm
3.3.1.1 Excursus on a special type of objective teleological interpretation: Dworkin
3.3.1.2 Objections to objective teleological arguments and how to respond to them
3.3.2 Relying on the intention of the constitution-maker (subjective teleological arguments)
3.3.3 Substantive (non-legal: moral, sociological, economic) arguments
3.4.1 Referring to scholarly works
3.4.2 Arguments from comparative law
3.5 The relationship between the methods
3.6 Conclusion on the suggested method of constitutional interpretation
4 The conceptual system of constitutional law
4.2 In defence of Begriffsjurisprudenz
4.3 Typical mistakes when building a conceptual system of constitutional law
5 Dialects or local grammars: the style of constitutional reasoning in different European countries
5.1 Austria and Germany: focusing on the conceptual system
5.2 France and the UK: limited judicial review resulting in limited conceptual sophistication
5.3 Hungary and Spain: copying the German model after the end of the dictatorship
5.4 Is there a European style of constitutional reasoning?
Part II Suggested vocabulary as a patchwork historical collection of responses to different challenges
6 Sovereignty and European integration
6.1 Taming the internal aspect of sovereignty: compromise strategies in national constitutional laws
6.2 Taming the external aspect: challenges to international legal sovereignty
6.3 Member State answers to (and ignorance of) the constitutional challenge of EU membership
6.4 Finding a new compromise formula between national sovereignty and European integration
6.5 Conclusion as to how to use ‘sovereignty’ in today’s European constitutional discourse
7 The rule of law, fundamental rights
and the terrorist challenge in Europe
and elsewhere
7.1 The original challenge to which the response was the rule of law: absolutism
7.2 A challenge today: terrorism
7.2.1 The concept of security
7.2.2 The nature of the threat to security
7.2.3.1 Formal rule of law vs. security: the constitution as a general constraint on the fight against terrorism
7.2.3.2 Substantive rule of law (freedoms) vs. security: the taboo of torture
7.3 Old challenges vs. new challenges: rejecting the redefinition of the ‘rule of law’
8 The constitution of Europe
8.1 The primary function: legal self-restraint or a list of taboos
8.1.1 Different material concepts of the constitution
8.1.2 Constituting vs. restraining?
8.1.3 Rules of rationality and default responses
8.2 A secondary function: a symbol of the community
8.2.2 The procedure of constitution-making?
8.3 Consequences of the two functions
8.3.1 The amendment procedure and stability
8.4 Shall we use the expression the ‘constitution of the European Union’?
9 Democracy in Europe through parliamentarisation
9.1 Why does a successful EU have to be democratic?
9.1.1 Genealogy: birth in the eighteenth century
9.1.2 The success story of democracy or the strength of the claim for democracy
9.1.3 Is output legitimacy an alternative?
9.2 Criteria for the well-functioning of democracy and their fulfilment in the EU
9.2.1 A technical-procedural issue: direct or representative democracy
9.2.2 Political freedoms and access to information on government
9.2.4 Non-legal political and social infrastructure
9.2.4.1 A homogeneous demos
9.2.4.2 Political identity or the European ‘nation’
9.2.4.3 Democratic mentality
9.2.4.4 Interested public opinion and media coverage
9.2.5 The direct link between election and responsibility: the effectiveness of popular will
9.2.5.1 ‘The current system is democratic enough, as we have democratic empowerment chains leading to the people’
9.2.5.2 ‘The EU has democratic origins, so its functioning must be democratic’
9.2.5.3 ‘We should rather make national parliaments stronger’
9.2.5.4 ‘It is practically impossible, as Member State politicians would not allow it’
9.3 Conclusion as to how to conceptualise democracy in Europe
10 Constitutional visions of the nation
and multi-ethnic societies in Europe
10.1 How ethnic diversity becomes a challenge: the nation as a political and social phenomenon
10.1.1 Factors helping the formation of modern nations
10.1.1.1 Nationalism itself as a political ideology helping the formation of nations
10.1.1.2 The socio-psychological needs of individuals
10.1.1.2.1 The need to give a meaning to life after secularisation
10.1.1.2.2 The need for social cohesion in a dynamically changing world
10.1.1.3 Political and cultural compartmentalisation
10.1.1.3.1 Country-wide communication in the vernacular through linguistic unification
10.1.1.3.2 The modern bureaucratic state
10.1.1.3.3 Fragmentation of universalist structures
10.1.1.4 Political struggles and wars
10.1.1.5 Side-effects of scientific and cultural advancements: census (statistics), maps (geography), bilingual dictionaries (linguistics), museums (scientific history), sport (Olympic games)
10.1.2 Antinomies of the nature of modern nations
10.1.2.2 Natural (ethnic, that is, based on ancestry or culture) vs. artificial (based on elite manipulation; or civic, that is, based on law and deliberate choice)
10.1.2.3 Based on historical facts vs. based on fabricated myths
10.1.2.4 Growing vs. fading
10.1.2.5 Constructive vs. destructive
10.1.2.6 Universal vs. local
10.2 Five different responses: constitutional visions of the nation
10.2.1 One state – one ethnic nation: assimilation or exclusion (vision no. I: classical ethnic nationalist vision)
10.2.2 One state – one multi-ethnic nation: the nation as an emotional alliance of different ethnies (vision no. II: Switzerland)
10.2.3 One state – several equal ethnic nations: the state as an empty shell without claiming an emotional connection between the ethnic communities (vision no. III: Belgium)
10.2.4 One state – a dominant ethnic nation and different minority ethnic groups (vision no. IV: most European states)
10.2.5 One state – no ethnic nation: the concept of a civic nation (vision no. V: United States)
10.2.6 Schedule on the constitutional visions of the nation
10.3 Debated or borderline cases
10.3.1 Spain (mainly IV with elements of II and III, but historically also I)
10.3.2 Slovakia, Croatia and Romania (I and IV)
10.3.3 The United Kingdom (II, IV and V)
10.3.4 Hungary (mainly IV, with elements of I and V)
10.3.5 France and Poland (IV and V, but historically also I)
10.4 Excursus on secession: giving up the constitutional vision
10.5 The European Union and the visions of a European political community
10.6 Conclusions as to the use of ‘nation’ in the European constitutional discourse
Part III Redundant vocabulary
11 Staatslehre as constitutional theory?
11.1 The key concept of the Staatslehre tradition: the Staat
11.1.1 The German Staatslehre tradition
11.1.2 Staatslehre and the concept of state in other countries
11.2 Arguments about the usefulness of Staatslehre today
11.2.1 An object-defined discipline with a complex method
11.2.2 Staatslehre as methodologically uncontrolled social science by lawyers
11.2.3 Confusion about the key concept: the Staat
11.2.4 Sociological importance or unimportance of the state in the age of globalisation
11.2.5 Legal relevance or irrelevance
11.2.5.1 Staatslehre as a conceptualisation of the separation of state and society
11.2.5.2 Primacy of the state against the constitution
11.3 ‘Pre-legal state’ vs. ‘constitution’ as a key concept: the example of the state of emergency
11.3.1 State-centred theories
11.3.1.1 Classical state-centrism
11.3.1.2 Moderate state-centred theories
11.3.2 Constitution-centred theories
11.3.2.1 The classical constitution-centrism
11.3.2.2 The open version of constitutional-centrism
11.3.3 Conclusions about the conceptualisation of state of emergency
11.4 Conclusion on the use of the conceptual framework of Staatslehre
12 The Stufenbaulehre as a basis for a constitutional
theory?
12.1 The hierarchy of the legal order
12.1.1 The Stufenbaulehre as a construction of legal theory
12.1.2 Points of criticism
12.1.2.2 Blurring the difference between individual and general acts
12.1.2.3 The indefensibility of monism
12.1.2.4 The validity of a norm conditioned by one single other norm
12.1.2.5 Derivation of validity (existence) of a norm in extreme examples
12.1.2.6 Derivation of validity (existence) of a norm in the case of simple legislation
12.1.3 An(?)other hierarchy of legal order
12.2 Another attempt of the Pure Theory of Law to structure legal order
12.3 Excursus: the underlying ideology of the Stufenbaulehre
12.3.2 Separation of powers and acknowledging the legal nature of general internal policies of the administration
12.3.3 Secularised theological conceptions of hierarchy
12.4 Is the Pure Theory of Law still alive?
12.4.1 Summary of the argument
12.4.2 Perspectives of the Pure Theory of Law
12.4.3 The virtues of the Pure Theory of Law and whether they can be saved
13 Principles as norms logically distinct from rules?
13.1 What are principles?
13.1.2 The objection: superfluous concept
13.1.3 Possible (counter-)objections against this purely rule-based paradigm
13.1.4 So what are principles?
13.2 How can principles be ascertained (recognised)?
13.3 What is the function of principles?
13.3.1 Heuristic function
13.3.2 Practical legal functions in applying the law
13.3.3 Meta-normative functions
14 Public law–private law divide?
14.2 The distinction today
14.2.1 Public law and private law as concepts of legal theory
14.2.1.2 Subordination theory
14.2.1.4 Trusteeship theory
14.2.1.5 Disposition theory
14.2.1.6 Combined theories
14.2.2 Private law and public law as positive-law concepts
14.3 What could be the constitutional purpose behind the distinction?
14.4 Further possible meanings of public law and private law
14.5 Should we use the concepts ‘public law’ and ‘private law’ in European constitutional discourse?
Part IV Concluding remarks
European Constitutional Language
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