Paul Linden Retek: “Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law”
This paper scrutinizes Jürgen Habermas’s concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—as the substance of a European public philosophy. Drawing on critical theorists’ reception of the concept and Habermas’s own contemporary writings on Europe’s crisis, I reconstruct constitutional patriotism from the analytic perspective of ‘constitutional imaginaries’. A constitutional imaginary emphasizes the relation of law to the broader societal and political meanings that create and interpret it from outside formal legal institutions. This perspective ‘thickens’ our understanding of the meaning of law as an object of public commitment, as well as of the processes through which this meaning changes (constitutional politics).
The paper then details the consequences of this shift for the work of the contemporary European judiciary and its constitutional discourse. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to a legal principle simpliciter but also to the historical settlement of political conflict the principle reflects. This suggests that the plurality of constitutional imaginaries in the European legal space creates additional difficulties for inspiring civic attachments post-nationally, a problem to which European judiciaries have heretofore been unresponsive. Second, an understanding of Habermas’s work in light of constitutional imaginaries opens new avenues for rethinking the interpretive and structural tasks to which Europe’s juridical institutions should be directed. In particular, the chapter highlights new forms of proceduralism to be recovered in constitutional discourse in order to establish a reflexivity of constitutional imagination adequate to post-national politics.
You can download the working paper at the SSRN.