“The UK Approach to the Emergence of European Constitutionalism - Repositioning the Debate: Departure from Constitutional Ontology and the Introduction of the Typological Discussion

Abstract

The purpose of this report is to offer a description of the English approach to the emergence of European constitutionalism and an analysis of the different manifestations that the process of constitutionalism could take in the European context. The argument made states that there is an urgent need to reposition the debate away from ontological questions about constitutionalism and towards a typological approach that accepts the existence of types of constitutions. Therefore, there is a constitutional spectrum in Europe that is comprised of different types of constitutions extending to the post-national level and which share the same essential characteristic of functionalism. On this basis, the EU and the ECHR represent types of constitutions that are different in nature and functions, but nonetheless create the framework for the operation of a process of constitutionalism that is more important than the debate about the existence of constitutions. That process of constitutionalism is present in the development of general principles of law and the formation of a system of European Public Law where there is an exchange of influences between the different participants (national, EU, ECHR). An essential component of that system is the coexistence of converging and diverging elements with the latter referring to those instances where there is disagreement and different views. It is submitted that these elements of convergence and divergence are equally important.