Does the EU have a ‘material constitution’? A historical and theoretical inquiry into recent European legal thought

Forschungsprojekt

The question of the existence and nature of a constitution of the European Union (and of the European communities before) has been one of the most challenging puzzles that legal scholarship and legal practitioners have faced in confronting this new ‘supranational’ and sui generis legal order. Within the colossal literature on this issue, many adjectives have been used to specify the nature and characteristics of the European constitution. Only very recently, scholars from different fields have focused their point of analysis on the ‘material’ constitution of the EU, by referring to the concept developed during the fascist regime by the Italian jurist Costantino Mortati (1891–1985). The concept of the constitution ‘in the material sense’ stresses the juridical relevance of the political aims of the prevailing social forces and tries to grasp the origins and functions of the legal system, studying the grey area of politics and law.

This project aims to provide a first conceptual history of the material constitution of the EU by investigating the reflection of some key legal thinkers and actors belonging to two strands of thought – legal institutionalism and Marxist legal scholarship – during the process of constitutionalisation of community law in two of the EU founding countries: Italy and France.

The hypothesis of this research project is that the material constitution, understood in its original formulation, proved to be inadequate in explaining the legal nature of the EU and its constitutional relations with the member states. As constitutional pluralism and discourse on fundamental principles became the two dominant legal cultures in the European legal doctrine, they stand in tension and contradiction with the idea of a material unity preceding and validating the existing law.

Working at the intersection of legal theory and legal history, the project will clarify the concept of the material constitution on a theoretical level by highlighting the semantic shifts that occurred when the concept was confronted with the new spatiality of the supranational legal entity. The research will show how the concept of material constitution has evolved in the history of the EU and what its current limits and potentialities are.