Soevereiniteit en pluralisme

Has Europe entered into a new constitutional era? An increasing number of legal commentators answers this question in the affirmative. In the manner in which the European Union develops, they see the end of the Westphalian doctrine – the paradigm that takes the sovereignty of states as starting point and that approaches legal relationships hierarchically. Van Rossem’s study questions this point of view. On the basis of an anatomy of the concept of sovereignty, it critically engages with a popular theoretical alternative for Westphalia: the theory of constitutional pluralism. According to the theory of constitutional pluralism, hierarchy has been replaced by heterarchy in the European Union. Democracy and rule of law would no longer originate in one constitutional source, but instead come together in a multilayered legal order, in which legal norms do not need an unequivocal explanation. But is it possible to construe such a conceptual framework in a secular, modern world? Can freedom and democracy, the European core values, live without legal unity and an explanation for the question why norms are valid? This study in the final analysis answers these questions negatively. In a constitutional sense, Europe has not passed the year 1648. Yet a conclusion in this book is also that the European Union can approached from a Westphalian perspective, without being confronted with a static world view in which many sovereignty accounts get trapped. A returning point in this book is that constitutive power and constituted power, the two building blocks of sovereignty, are mutually constitutive. As a result of this paradox, it becomes possible to envisage competing sovereignty claims, which exclude each other, yet nonetheless are somehow in the world together. According to this study, this image is the most convincing explanation for the current, crisis-riddled constitutional reality in Europe.