The Transformation of Europe Revisited: The Things That Do Not Transform
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The Transformation of Europe, published in 1991 in the Yale Law Journal, was ten years in the making. Its infant version was in EUI Working Paper No 2 from 1981 titled ‘Supranationalism Revisited: Retrospective and Prospective—The European Communities after Thirty Years’. It went through various iterations such as ‘The Community System: The Dual Character of Supranationalism’, which appeared in the recently born Yearbook of European Law, later in Il Sistema Comunitario Europeo—Struttura Giuridica e Processo Politico (Il Mulino, 1985), and then, in its final and mature version in 1991 as Transformation, after which I had had enough and moved on to other themes. Given the immodest ambition of that project, to revisit Transformation is to revisit the European system and in a sense to revisit the transformation of my own thinking of that system. Transformation has had no shortage of critics—Daniela Caruso’s spectacular The Missing View of the Cathedral being a memorable early legal critique, and ending with Alec Stone Sweet and Dan Kelemen’s very generous critique in this volume. No one to circle the wagon, my own work subsequent to Transformation could be read as a slow dismantling of what was left of cathedral. Even on such foundational notions such as how to read Van Gend en Loos I have come to understand (and teach) things differently. But some things have remained untransformed in my own thinking and, I believe, in European integration. Transformation posited as its foundational explanatory key to understanding the success of the European construct, the equilibrium between legal structure (as a proxy for the institutional edifice of European integration) and legitimation rooted in national polities. When in subsequent work I proposed a normative theory of European integration (‘To Be a European Citizen’; ‘Constitutional Tolerance’), the robust ‘survival’ of the of the national demos in a system of multiple demoi, and legitimation in national polities and politics was posited not as a necessary evil, but as the defining element in the normative originality and nobility of European integration, and its distinguishing feature from all other federalisms in which the federal demos tends to dominate legally and oftentimes even to obliterate culturally and socially all others. I still believe that that woefully underspecified concept of ‘legitimacy’ is an indispensable element of any understanding of the European construct since it is the indispensable oxygen, the political reservoir to which we reach out in times of crisis for it is that which allows the adoption of policies which are not popular and go outside the normal cycles of democratic politics. The quest for understanding legitimacy in the context of European integration is thus another untransformed element in my intellectual wanderings. In my current work I have come to understand the tragic nature of the European construct. A satisfactory democratic legitimation will, I have come to think, necessarily come at the expense of the normative nobility of constitutional tolerance. Turning then (yet again) to legitimacy, European discourse employs two principal concepts: input (process) legitimacy and output (result) legitimacy. I wish to add a third, less explored, but in my view central legitimating feature of Europe—political messianism. I propose to explore, in turn, each of these forms of legitimacy in their European context, and in relation to each show why, in my view, they are exhausted, inoperable in the current circumstance. The current crisis overwhelms current thinking of European integration. A larger perspective may, thus, be of some utility. But even in the context of the current crisis, whereas Europe requires European solutions, if these are to be successfully adopted, they will require an employment of legitimacy resources to be found within national communities. To the extent that these national resources will be found to be depleted, the crisis we are facing will remain not only insoluble but existential.
Source Publication
The Transformation of Europe: Twenty-Five Years On
Source Editors/Authors
Miguel Poiares Maduro, Marlene Wind
Publication Date
2017
Recommended Citation
Weiler, Joseph H. H., "The Transformation of Europe Revisited: The Things That Do Not Transform" (2017). Faculty Chapters. 1486.
https://gretchen.law.nyu.edu/fac-chapt/1486
