Justum facere in the European Integration Process: How Should the Law Promote the Constitutionalization of Europe?

The essays examines two strands of thought in the conceptualisation of the functions of law in the development of the project of European Union. One is the idea that the integration project could be guided by and promoted mainly "through law", eventually accompanied and complemented by political bargaining processes. The other is the constitionalisation project which advocated the accomplishment of an Ever Closer Union through an ever more comprehensive legal fabric of constitutional provisions. Both projects are deeply affected by the by now extremely critical 'State of the Union', in particular the financial crisis which goes hand in hand with the pressures exerted by European rule on national systems of social welfare. A common background of these failures is identified in the equation of 'domestic justice' as realized in the post-war constitutional democracies of Western Europe with justice between these societies. These tensions remained latent for long but where bound to break up with the ever more deepening socio-economic diversity in the Union, development which was accelerated by the process of Eastern enlargement. Neither the rigid institutionalisation og economic rationality through their internal market programme and Monetary Union nor technocratic managerialism will be able to cure the current crises. The paper advocates instead a re-conceptualisation of European law "as a new type of conflicts law". This type of conflicts-law constitutionalism requires a move from substantive prescriptions aiming at uniformity despite socio-economic diversity towards a proceduralisation of the European law which acknowledges Europe’s diversity and seeks to stabilise the Union through problem-oriented conflict resolution.