Constitutional Patriotism as Europe’s Public Philosophy?

Abstract

Abstract This chapter critiques Jürgen Habermas’s concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—from the analytic perspective of ‘constitutional imaginaries’, and details the consequences of this critique for the constitutional discourse of the contemporary European judiciary. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to legal principles simpliciter but also to the historical settlement of political conflict those principles reflect. This suggests that the plurality of constitutional imaginaries in the European legal space poses additional difficulties for inspiring civic attachments post-nationally. Second, understanding Habermas’s work in this light opens new avenues for rethinking the interpretive and structural tasks to which Europe’s juridical institutions should be directed. In particular, the chapter proposes more responsive forms of proceduralism able to sustain the reflexivity of constitutional imagination that post-national politics requires.