The (Re)making of Constitutional Democracy? In conversation with Paolo Sandro

“If one cannot distinguish between the activities of making the law and applying the law then the idea of democracy itself cannot exist.” 

In this latest RevDem Rule of Law section podcast, Oliver Garner speaks to Paolo Sandro, Lecturer in Law at the University of Leeds.  Sandro’s recently published monograph The Making of Constitutional Democracy: From Creation to Application of Law (Hart Publishing, 2022) confronts the topic from a legal theoretical perspective. Their conversation considers the practical application of his work and the theme of (re)making constitutional democracy following recent significant events in Europe.  

Due to technical reasons, the quality of the recording is partially reduced.

Corrigendum: This transcript was updated for clarity on 28th October 2022.

Oliver Garner: The title of your book may be regarded by some as denoting an ambitious scope of inquiry. Could you explain the core arguments of your work for our readers and listeners?

Paolo Sandro: I’m aware that the title of the book might sound ambitious. It is ambitious, in a way (that’s also why it took me about 10 years!). The book was born out of a very basic observation. Lawyers,

people working with the law, public officials etc all seem to assume that there is a distinction between the activities of creating the law, and applying the law. 

The former occurs when a legislature or a policymaker makes or issues a rule. The latter arises when other officials – be they judges, administrators, civil servants, police officers and so forth – actually apply those rules to individual cases.

The interesting thing is that, when you look at the jurisprudential literature in particular, the vast majority of authors who have looked at this problem have claimed that the distinction is untenable. Most of the time, they have questioned the idea of law-application altogether. This includes scholars from different approaches – legal realists, critical legal scholars, legal constructivists, and even, in some respects, Ronald Dworkin [a renowned ‘rights-orientated’ legal theorist]. 

Some people might think that this book is naïve because there might be no actual need to defend the distinction. But when you look at the relevant literature, you see that most theorists actually don’t believe that the distinction exists. Now, why is this relevant? And why is this relevant not just for our legal peers, but for public and administrative lawyers? Its relevance is one of the key points illustrated in the book: 

If one cannot distinguish between the activities of making the law and applying it – at a later moment – then neither the idea of the rule of law nor constitutionalism can exist, and nor can the idea of democracy itself. 

The idea of democracy entails either direct or indirect democracy. In either case, the concept of democracy is premised on the idea that we make the law: in the former case, we make the laws ourselves directly through referendums and other mechanisms; in the latter case, the law is made by representatives that we elect. These laws are then supposed to govern our behaviour. This is the idea of self-governance: democracy is about something that, without the idea of law-application, cannot exist. 

If law-application does not exist, then are we living in a collective delusion? Are we living in The Matrix or something equivalent? This was the basic observation out of which the book was born. Using an interdisciplinary approach that includes not just legal theory and public law but constitutional theory, anthropology, legal history, philosophy of language, and political philosophy, in the book I try to put forward – to my knowledge – the first comprehensive defence of the distinction between creation and application of the law. In the meantime, I show  relevance of this defence for some of the ‘hottest’ or most contested debates in constitutional and public  law.

I think that the argument can also be applied to some of the ‘hottest’ and most topical issues facing both the UK and the EU at present [This interview was recorded on Friday 23 September]. One thing that I found interesting when thinking about your argument was considering whether we have a situation in which a lot of legal scholars have too narrow an idea of what the ‘executive’ branch of government is, and what it does. You mentioned the police. I think that it’s very interesting to consider whether we need to broaden our concept of the law-in-action to encompass what the police do when they’re enforcing the law. So could perhaps more of a ‘lay-person’s’ understanding of ‘the law’ be helpful for legal scholars?

I absolutely agree to the point that I think that this is one of the biggest flaws of jurisprudence in the last 50-60 years. Even H.L.A Hart in The Concept of Law does not really consider the application of law before courts. 

Traditional legal theory presents the issue as if there is a vacuum: laws are made by legislatures or secondary legislation is made by the government, and then there is application in the courts. This misses the vast majority of legal phenomenology because the vast majority of law does not end up before courts.

This is a big flaw in jurisprudence in general. Even before I wrote the book, I published other work in which I argued precisely that lay-people should again be placed at the center of the theory of interpretation. As you mentioned, the first application of the law is almost always made by government officials, police officers, or civil servants. The majority of the vast number of functions that any executive performs in a modern constitutional democracy will entail law-application.

Absolutely. When reading you book I was struck by the examples you provide that may be regarded by some people as mundane, but which are in fact very important for people’s life conditions. There is one last thing I will say on this before we move on to discuss the contemporary high political drama: the lay-person’s understanding of the term ‘law and order’. It has connotations. It has been used in political campaigns. But it does speak to the reasons that people regard legal systems as existing to pursue. At its heart, I think that this reason is security. This is something that people feel they need. But, in any case, I think that you’ve managed to identify a ‘gap’ in the literature: the ‘selection bias’ of legal scholars in being focused exclusively on courts.

There is an interesting example based on my experience in Manchester – a great city in the North-West of  England.

A city that is very close to my heart as well!

There are two ‘ring roads’ in Manchester: an internal one and an external one. The former is called Trinity Way. It is a ring road that literally runs between buildings in the city center. Now, the speed limit of this ring road used to be 50 miles per hour [80 km per hour], as with most similar roads. Recently, during the height of the COVID pandemic, the civil authority – Manchester City Council – decided to reduce the speed limit to 30 miles per hour.  I think that this is a good idea for a number of reasons: less pollution, less noise pollution etc. 

Reasons for action’?

Indeed. Now, the problem is that the authorities are not really enforcing the new speed limit. So the law is not being applied. At the least, the police should be applying the new speed limit now.  Why is this relevant? Because I happen to drive on Trinity Way sometimes, and I abide by the speed limit! And, almost each and every time when I am abiding by the speed limit, I get another driver behind me who starts to flash me with their headlights, or literally honks their horn at me, to try and communicate that “you need to go forward!”. 

The people who try to persuade those abiding by the new speed-limit that they should speed up to the old limit are under the impression that the speed-limit doesn’t exist because it’s not being enforced

I think that this example illustrates that the majority of law-application should be done by the police. If this law-application doesn’t happen, then this affects the capacity of the law to regulate conduct.

Your fascinating example touches upon normative orders, tradition, custom, and even the fact that so many decisions about the ordinary life-conditions of citizens are made by local authorities. We could talk about legal theory case studies all day. But let’s move on to the very important ‘business of state’, or at least the business of analyzing states. 

In your book, you discuss what you consider to be the problem of the different meanings of the term ‘constitution’ throughout history, and the differences in how this term has been regarded throughout different societies. You assert that it would be more promising to consider ‘constitutionalism’ from a legal theoretical perspective, particularly focusing on the ‘theory of sources’. My specific question concerns the practical application of this thesis for ‘matters of state’ on the ground.

According to you, what are the sources of the United Kingdom’s constitution? Furthermore, what could be the sources of the European Union’s ‘constitution’, if indeed we can use that term to describe the EU’s supranational legal order?

I might need a couple of days to answer these two questions but I’ll try my best to be brief! The source thesis is one of the famous tenets of legal positivism: but different people understand it in different ways.

For a long time, the doctrine of constitutionalism was equated with the presence of a constitution in a legal system. This is problematic in a number of ways. If that is the case, then every system that has a constitution is necessarily constitutional. I don’t think that is correct because constitutionalism requires the legal limitation of political power. 

In my view, the United Kingdom is correctly recognized as the motherland, the birthplace, of modern constitutionalism because – since the Magna Carta –  we have had this idea that there are limits to what the sovereign can do: there are legal limits placed upon the ultimate political power.

If one adopts an understanding of constitutionalism that depends upon the presence of a defined ‘constitution’, then we would end up in a paradox: as the UK doesn’t have a formalized or codified constitution, then how can it have ‘constitutionalism’? In the book I argue that this is because the common law has played the limiting role in the face of political power. Historically, this first took place in the face of the power of the monarch, and then only after in relation to the power of Parliament. This goes against the orthodox model of ‘Parliamentary Sovereignty’. I am critical of this model not on a normative basis, but on an historical and conceptual basis.

You potentially have support from the judicial dicta in certain cases from the former House of Lords Appellate Chamber [now the UK Supreme Court]. In the R Jackson v. Attorney General case, the speeches of certain Law Lords may be interpreted as engaging in speculation about whether the very concept of Parliamentary Sovereignty itself could be regarded as a concept that arises from, and is ultimately dependent upon, the common law. This raises a fascinating hypothetical about whether there could be a situation in which legislation passed by Parliament is so contrary to other principles of the common law [such as the Rule of Law] that the Supreme Court might find that it is not a valid piece of law.

The claim is that Parliamentary Sovereignty might be a creation of the common law has been criticized particularly by two of the most strenuous current defenders of the orthodox model of the unlimited doctrine of Parliamentary Sovereignty. These critics are Michael Gordon from Liverpool, and Jeffrey Goldsworthy from Australia.

My thesis is different, and actually even more radical in some respects. As a matter of historical recognized practice, there have always been limits placed upon what the ‘sovereign’ (the monarch before the ‘Glorious Revolution’ in 1688, and Parliament after) could do. These limits were recognized particularly. And actually I’m writing a piece at the moment I was writing I had to put it on hold. I’m going to go back to it soon. But I have a piece in which I’m trying to explain. Certainly one principle that was always considered to be a limit to what Parliament, the sovereign could do is the principle of nemo iudex in causa sua , No one should be the judge in their own case.

And this limit has been applied, has been enforced, has been accepted. So my thesis is not normative, it is historical and conceptual If I’m right, then it is not the case that parliamentary sovereignty, as Michael Gordon, as Jeffrey Goldsworthy claim, has always been accepted as the rule of recognition for the listeners who are aware of the rule of recognition thesis by Hart, was not the ultimate rule of recognition of the United Kingdom, but it was always limited. So there is no such thing as unlimited sovereignty of power.

Fascinating. Well, I think actually at this point we should advise our readers and listeners to engage in some of the, I would say, fantastic constitutional fiction from this island, which would be William Shakespeare, Richard II and then Henry IV, part one and part two. And in terms of almost, let’s say, live narrative of divine right of kings, the limits of power, succession, I think there is a lot of in there which could help support your position on the idea that that sovereign power was always subject to, I would say, factual limitations and potentially normative limitations.

No, absolutely in the book and in a blog-post that I wrote a few months ago for the UK constitutional law blog, I actually called this pragmatic limitation in a nutshell, in systems with codified constitution and strong form of constitutional review, the Supreme Court or Constitutional Court can basically just strike down legislation. This is not what happened, has happened and continues to happen in the UK. What happens in the UK is that the courts say, well, this is not what Parliament could have possibly have intended. It’s literally a theory of fiction. And we have examples, let’s say, the Ouster clause in the  Privacy International. As a note to our readers, Ouster clause is basically a particular disposition in a legislative act which says that the jurisdiction of the Court is basically removed from adjudicating on decisions premised on the act. The case law on ouster clauses stretches back all the way to Anisminic. This has always been how constitutional limits have been enforced. Now this is acknowledged even by the defender of the unlimited theory of parliamentary sovereignty. And I’m giving away too much right now. I think I’m giving away my article. But really I believe that they cannot just claim the parliamentary sovereignty is still unlimited.

Applying these very interesting arguments to the current political situation, Privacy International ouster clauses were main targets of what one could call  the previous UK government program of constitutional reform. And we saw that the judicial power projects of policy exchange were quite active in publishing reports on this. So I think it’s very relevant for our listeners to note that what might appear to be arguments that take place in classrooms are very relevant on the ground in the UK at the moment. And you have legal theorists teaching at Oxford University, for example, involved in this almost front line political drama. So I would say that really is an example of how relevant your work is for the current political situation. And on that point, you mentioned in your last answer there this concept if that’s the right word, but the idea, let’s say, that the common law has functioned as a legitimate limitation on democracy that derives from what can be regarded as constitutionalism. You also identify the Commonwealth as one of these limitations as well.

My question for you is whether there are further legitimating limitations within the United Kingdom’s constitutional order that can be seen to exercise a restraining function on democracy. We’ve already mentioned King Richard II and King Richard IV, which goes way back into UK history. But to really bring us forward to the present day, my question would be, has the monarchy played a role in constraining the possible excesses of democracy in the UK? And do you believe that the monarchy could continue to play such a role or could do in the future? And I could say, maybe opening this up a bit more. Can constitutional monarchy play this role in other borders that currently have what could be seen as close to an unlimited monarchy? I think this is a really fascinating question for possible transition of absolute monarchies that we see in the world today. One can point to examples in the Middle East. So, yeah, in a nutshell, the question would be, can the monarchy help to preserve a constitution order?

So let me preface with the clarification. What I don’t do in the book is to romanticize the common law. I do not claim, and because it would be wrong, that the common law has provided always and in every case in which it should have been perhaps a limiting function vis a vis the decision of the sovereign.

The common law, as we know, is born out of experience. It grows organically or by accident. But in any case, what I’m trying to say is that the argument is conceptual.

I’m not saying that the common law model of constitutionalism is superior to the entrenched formal constitutional model. What I’m saying is that they share the basic concept, the basic dynamic. Now, when it comes to the monarchy, it’s a tricky answer in the sense.

You can answer from a variety of perspectives. You could look at it empirically and there are some studies in which whether or not constitutional monarchies do a better job than presidential system in representing a sort of symbolic presence within a constitutional order yes. That maintains some kind of focal point for not just the population, but the constitutional actors as well.

Sorry, no, if you don’t mind me coming in. I actually would regard this myself as what I would call the symbolic separation of powers. And I find this quite a potentially important idea that needs to be developed. I just very briefly outlined in the United Kingdom, the person who exercises all of the de facto power, the Prime Minister, lives in a house. Now, it’s a very well protected house, but it’s a house on Ten Downing Street, which is mainly an office with an apartment at the top. This is symbolic, I think, of the fact that they are the first of the ministers. Now, of course, the monarch who exercises all of  the de jure power lives in the palace, has multiple palaces, everyone’s aware of this, from all of the state ceremonials that have been occurring. But of course, crucially, we’ve seen with the fact that the accession was broadcast live, that the power, in terms of genuine power, de facto is very limited. The King merely has to say approved to everything the Privy Council gives to them. Just to compare that very briefly to the situation in France, and this is, I would like to say, purely observational rather than normative.

The President of the Republic exercises, of course, not unlimited power, but they have the de iure and de facto power and the President lives in a palace, the Palais de l’Élysée. So I just think it’s interesting to compare those two different models and I wonder if that has any relevance to what you’re saying in terms of the symbolic separation of powers.

Well, it does, there are other models. So you can also contrast it with the Italian model. The President of the Republic is a guarantee, what in the book I would describe as performance of a guaranteeing  function which is not necessarily a formal one, actually, very much not. So the Italian President of the Republic is just a part of the constitutional identity.

There is a problem with the role exercised by the monarchy here. And I think it’s a fundamental contradiction that at some point might need to be resolved because the whole legitimacy to still have an active monarch in the United Kingdom is that well, this is compatible with being a parliamentary democracy, possibly a constitutional democracy. The monarch basically does what his ministers tell him to do, and we know it but that is not necessarily the case, or at least not always the case. A few months ago, the Guardian published a number of articles on a procedure called the Queen consent. Consent is different from Royal Assent, which is the prerogative power and underlying constitutional convention that says that the monarch will give us that to any bill that has been properly formed, either in both Houses of Parliament or according to the procedure of the Parliament at 1911. Anyway, sorry, this is an academic mental habit. But when you realize that the monarch does more than merely rubber stamp something, then there is a question of legitimacy, especially when we also know that the British monarchy has a vast wealth that is in some ways still treated differently from anyone else in the country.

In the moment in which the monarchy has a vast wealth and we know that the monarchy has received a number of exceptions and extensions from the application of laws that apply to everyone else in the country then there is a problem of legitimacy.

The Rule of Law is regarded as an essentially contested concept by some, but I think we do touch upon what can be seen as the core principle of the rule of law, that no one person is above the law and that’s been regarded as leading to the principle that everyone is equal before the law. In terms of distinction between the person and the office and the monarch, there is a very interesting question at place. We have seen when Charles became King. One of the points of business in the Privy Council was him divesting all of his personal wealth to the state, which is very fascinating to see. But I wonder if that is also relevant in terms of the private-public power distinction.

I would say the former Prime Minister, Boris Johnson was forced to resign. One could say that there were many reasons why he might have had to resign. But let’s say that certainly one big part was played by the so called lockdown. And the point is precisely that the Prime Minister cannot be above the law. Exactly where everyone else, we all did sacrifice. We didn’t see our loved ones, we didn’t party, I didn’t celebrate my marriage with families and friends, because now I think that the same applies or should apply to the monarch. And that is the basic point, but for some reason it doesn’t. So we go back to the symbolic, to the symbolic value, almost as if from an empirical point of view, the continuous symbolism of the monarch represents something larger than the whole in some respect. Now, the question is, and I will stop here and I think that many commentators have raised this, is that can Charles the new king exert the same kind of pull that the Queen has exerted for over 70 years?

I think that’s a great question. And if I was to profess myself, I’d say this almost necessary, depends on the nature of the personality. Let’s imagine a fascinating hypothetical example of what would happen if King Charles decided to withhold Royal assent. This is a basic example of how constitutional breakdown could happen in the UK. What I find a bit more interesting and a bit subtler is the fact that there is a chance that a different dynamic might be in place when a Prime Minister is having a conversation about their policies with the King. 

The problem is not just the hypothetical example you were thinking of whether or not the monarch would withhold royal assent . The last time it happened was more than 200 years ago. Yes, but the problem is that in the instances  in which political and constitutional matters start to pull the monarch  one way or the other, as it happened during the Brexit turmoil, so to speak, in which some politicians were saying, well, perhaps the Queen should withhold royal assent. I mean, I’m not naming names. I think that already in that moment something was broken and this has to do more generally with the role played by conventions in the UK. Now, constitutional conventions, for those listeners that might not be familiar with the term, are those basically non legal sources of the UK constitution. They are sources of rules that are non-legal. They arise as a matter of practice of history, but are regarded as binding by the political constitutional actors  involved. Now, what we’ve witnessed certainly in the last ten years particularly, but let’s say in the last five for sure, is a breakdown of Constitutional Convention. We’ve seen more and more certain political actors doing this, and particularly the last Prime Minister as he was a prime example of this, I’m sorry to say.

As a matter of fact, many constitutional conventions were not respected. This is problematic in the same way as starting to pull the monarch inside the political game, because the constitution, the UK unwritten and uncodified constitution is premised on those conventions being respected, being felt as binding and being effective. If those start to go down, then we don’t know what’s going to happen. Actually, we started experiencing what could happen, as the whole system might start deteriorating in a way that many people say – are we facing a democratic decay, to use a term that has become currency in international constitutional law discourse? We go back to the point that there is a certain symbolic effect that the monarch has, but that is also premised on the fact of being perceived as being outside the political game. Not just being actually outside, but being perceived. The perception is almost as important as the actual fact.

Absolutely. This reminds me of the principle of bias in one case that you mentioned earlier. It’s not just the bias, it’s perception of bias which is so important. And I would agree with you in terms of the constitutional functioning of the United Kingdom, that perception of being beyond politics is also crucial. And I would maybe observe here that this could be maybe an unintended negative spill-over effect of the increased publicity transparency that Charles wishes to pursue, the example being the live broadcasting of the accession procedure on the Privy Council. And I’ll just give you one example on this. People noticed already that Charles became annoyed during the procedure. Now, this in itself shows that people will scrutinize these moments and they will look for any potential, let’s say, clue as to what the monarch is thinking politically. And actually this has led to an extremely interesting story that was reported today by Radio Four, the Today program, about the fact that I believe there have been requests from the palace to the public broadcasters that certain timestamp moments of the live broadcast of the state funeral should not be broadcast again.

So the palaces ask the broadcasters not to broadcast this again. I think what I’m getting at is the idea that there might be a balancing act in play here. If one increases transparency, the openness of the monarchy, there could be the unintended negative consequence that people start to, let’s say, interpret certain behaviors in such a way that they indicate the monarch’s personal beliefs or opinions. This in turn could lead to the idea, or at least perception, that the monarch is engaged in politics. So that’s quite a convoluted claim, but something I think is quite relevant to what you’re talking about.

It’s a good observation. One could also claim that more transparency is necessary for the survival of the monarch in this respect. And to be fair, there are going to be some developments for sure. If not in the UK, then in some Commonwealth countries, we might see it’s already started. So I think it’s not unlikely that the monarchy will go through a period of change. What I want to go back to is that there is an empirical question of whether having a constitutional  monarchy, so whether an unelected monarch as head of state can perform better than an elected president being the French model, being the Italian model. That’s not the point right now. Now, that is an empirical question and of course it needs an empirical answer. Now, in the empirical analysis there is always going to be the question of interpretation as well, so it’s not going to be just the raw data. Those data will need to be interpreted. At the same time, there is also a point about the concept of democracy and being born equal before the law. So in my view, I do see that there will be questions, particularly when it comes to some of the exemptions or some of the differential treatment that the monarchy still gets in the UK, and whether that will continue. At the very least, I’m not even talking about a Republican movement at the moment, but I’m saying that I see that as potentially happening in the not so distant future.

That’s a fascinating point to maybe before we move on to our final questions about, one could say, almost a compromise or middle point between the two models you provided. So maybe on one hand you’ve mentioned constitutional monarchy, and on the other side, we have elected presidents. Now, you could say the issues of monarchy, we’ve discussed them well, but in the other models there the issue of the clash between head of state and the head of government. And I’ll just give a quick example of this I found fascinating from colleagues from Scandinavia. I believe that there was a problem in Finland where there was a dispute between the Prime Minister and the President about who should represent Finland in the European Council. And I found that fascinating because, of course the European Council is heads of state or government and there was quite literally a dispute over which person should go. So maybe that indicates some of the problems of elected president.

Now, the reason I say all this is perhaps there’s an interesting midpoint, which is one could call appointed president or almost a vocational president. The example I give here, without going into the actual constitutional niceties of the Irish system, is President Michael de Higgins. The fascinating thing for me is Michael D. Higgins is a poet, I believe an author, a literary figure. And he seems to, in a sense represent Irish culture, Irish society, in a way that in my opinion does transcend politics. He is very well known for the fact that he will always be very kind to his dog during interviews. So I wonder if that perhaps indicates a possibility of a system where the head of state represents the society and the culture, rather than the state and the political system.

I think it’s a good point. This is certainly a matter of personal preference as well. For some people it is fine to be the subject of a monarchy. For some people it is not fine. And some people are Republican.

Now, what we can certainly agree on is that no matter what, the head of a state, of a constitutional democratic state should transcend politics, as you said, everyday politics. And I think that would be also a key factor in the legitimation of the figure.

I still personally prefer the appointment of a head of state rather than hereditary succession, but this is my personal preference. Of course, what I certainly do think is that the aspect of equality comes back into the picture here and is important. So I could accept personally hereditary head of state who does not have special exemptions from the law differently from everybody else.

I have one question about the system in Italy which actually comes out of what you said there about the president being out of the fray of everyday politics. And I think my question. Do you think that the way in which the President of the Republic Mattarella was perceived to be involved in the selection of ministers around the time of I believe the 2017 election. Maybe you can correct me on this,  was it the Minister of Finance?

One of those, but particularly he vetoed one of the candidates. That was, I think, expressed by the Five Star Movement.

Do you think that compromises the perception of the president being above afraid of ordinary politics?

So it’s a good point. Of course, I wasn’t claiming that the President of the Italian Republic is above the law. What I’m saying is that the perception is as important as the actual fact, and one could claim that the President of the Republic is first and foremost a duty to the country, and as a duty to the country in a way that sometimes might require to actually get one’s hands dirty. Now, of course, the point is that whether or not this is within what the Constitution allows, and in my view it was, yeah, the Constitution does foresee a role for the President of the Republic to perform.

Now, certainly because of the instability in Italian politics, the President of the Republic had to play sometimes, I think, even a larger role of what he would have liked. Sergio Mattarella is a man, I think, that almost every Italian can vouch for, for his integrity and sense of respect and sense of duty towards the state. So I’m positive, although I don’t like to speculate on other people’s feelings and so forth, but I’ll do it on this occasion and I’ll say that I’m pretty confident that the President of the Republic would very much like not to have to be so involved in recent times. But Italian politics, as we know, are interesting. Now, it looks like British politics is becoming, in some respect much more similar to Italian politics in the last few years at least. So I’m not sure what we’re going to see here in the UK. It’s going to be interesting.

That observation can lead us to the final question which I have for you, which I think can be summed up under the umbrella term of constitutional moments. And our listeners may be aware that this was used by Bruce Ackerman in his seminal collection of “We the People” about the American Constitution. So my question for you firstly is about the UK and then about the European Union. So with regard to the United Kingdom, I think everybody out in the world is aware there is a new monarch.. Does this mean that what’s happening in the UK in terms of transition can be regarded as a constitutional moment? 

If we are indeed in a constitutional moment, does this provide the opportunity for remaking constitutional democracy in the UK? Specifically, in terms of your argument of the distinction between creation and application of law?

Okay, so personally, I don’t think that this is a constitutional moment, or at least not yet a constitutional moment in the UK. Would be I think if the role of the monarchy starts to be questioned more substantively or more regularly. I would certainly characterize that as more of a constitutional moment. Now, we must not forget about the geographical territorial makeup of the Union.

I do think that how the devolved nations will react, not just to the accession of the new monarch, but also to the new government. Now, today was quite a momentous day. The new government has announced what can be defined the most extensive tax cut of the last 35 years. There has been already a lot of criticism out because certainly we can say that it’s of a regressive type in some respects.

Just in the way in which the tax cuts have been announced. Now, I do believe that this is going to be particularly relevant in how Scotland, Wales and Northern Ireland in particular, will react, considering also the turmoil about the protocol.


Switching to the discussion on the European Union, I I think I’ve heard the term a crisis of crises being used for it now. Let’s just start with 2016 Brexit. So what’s been called a secession crisis or a crisis of membership, the rule of law crisis, what I like to call instead the values crisis, self-identified liberal member states challenging the foundational values. We also now have what can be called quite literally a military crisis on the borders of the European Union, which has become directly relevant to EU constitutionalism because Ukraine, which is still engaged in a land war with Russia, is a candidate member states and the evocative term integration through war, or maybe in spite of war has been used. We also have what one can see is maybe not a crisis, but the attempt to address it with the Conference on the Future of Europe. And this could be seen as addressing a more longstanding, almost intellectual crisis which is known as the democratic deficit.

And that has led to formal calls, I believe, from the European Parliament to amend foundational treaties. So I think this is the background context for the question of whether and this is maybe interesting trust in the UK. Is this a constitutional moment for Europe? And if so, could we see a remaking of constitutional democracy?

So in the book I do not talk about the European Union for a number of reasons. The first and foremost is that I consider the European Union legal system to be sui generis . It does not fit squarely within my framework. It could perhaps fit in the last chapter of my book in which I argue that we need to abandon the Tripartite version, the French philosopher Montesquieu’s version of the separation. This idea is not mine, it comes from Luigi Ferrajoli, a  very well-known Italian legal and constitutional thinker who is very famous in all Latin speaking countries of south America, Spain, Portugal, Italy, France, et cetera. But he has not been translated yet in English. I’m trying to work on that soon. Now, what I want to say about the European Union is that this could certainly be a constitutional moment for the European Union. In order for it to be so, it needs to address what is still, I think at the core one of the biggest issues of European integration, which is the incomplete economic integration of the EU.

I really do believe that until the European Union doesn’t have a unified tax policy, especially when it comes to corporations. The European Union and the single market in particular has done a lot for European integration, but some crucial elements of it are not yet there. In my view this has hindered in many respects what are necessarily the next stages. Now, I do believe, and I do like the idea of a federation of states in the European Union. I do think that the federal model personally, I know that many people disagree, but I do think that the federal model is in the long run, possibly the only one through which the European Union cannot just survive but actually become what I think it can become. I’m a convinced European in this respect, or supporter of the European Union. Anyway, we should recognize all the issues and the mistakes that the European Union has made in terms of economic policies, in terms of the austerity program that has caused tumult in my home country as well as well as others. Not to learn from mistakes is a bit more problematic.

And we are seeing some issues now, even with the rule of law, conditionality mechanism and the application, we are seeing some tinkering by the European Commission that is problematic because it plays in the hands of autocrats right now in the European Union space. On the other hand, there is the potential for the Russian invasion of Ukraine to constitute a push of sort. History sometimes does that and from something really awful and tragic could potentially lead to a positive change. But it needs to be seized. I think it’s a historical opportunity but there needs to be the same political will that 60 years ago made some people realize that there was a potential future that was not even imaginable before because it was unimaginable. Unimaginable for France and Germany not to be at war constantly all the time but actually become so integrated that the idea of war is unthinkable between the two. So, yes, I do believe that there is much more potential for the European right now of a constitutional moment. The Conference on the Future of Europe could prompt transforming this impetus into concrete political action. Nevertheless, it needs to address what are the unresolved questions of integration, and many of them have to do with economic integration, the mistakes made in terms of austerity and recognizing that the European Union has in some countries driven people away or  contributed at least to driving people away from the European project.

Absolutely. And I would maybe just point to some of our previous publications on these topics. Senior on the idea of a federation reminds me of something Martin Loughlin said at LLC, that if you have what he called economic sovereignty in the hands of institutions, then you have federation. Maybe that’s a debate for another time. But I think what you said is very significant for our present moment and this term of integration through war, integration despite war, integration after war. Perhaps we have for the first time a moment for Europeans to understand what it felt like, to understand why it was so important.

You can see what it means to Ukrainians. And you can see that Ukrainians are actively pursuing this, that it would mean how much it means to them, hopefully can also represent some sort of booster, shall we say, shall we use the terminology that we have all unfortunately became familiar with. But it could represent a much needed booster to the idea of Europe and the European Union that in the last 15 to 20 years has been looking for a specific word that I cannot find right now, I don’t want to say diluted, but it has been challenged.

This transcript has been edited for length and clarity.

In collaboration with Teodora Miljojkovic and Lucie Hunter

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