Abstract
AbstractOwing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System. This is regrettable, not least because the Convention has reconfigured national constitutional authority in a cosmopolitan context. The emerging cosmopolitan constitutionalism is based upon three ideas: first, the exercise of state authority must also be legitimate from the perspective of those who are not citizens; second, a constitution must embrace fundamental rights and the representation of insiders in order to facilitate the representation of all, including outsiders; third, the authority of the constitution doesn’t just depend on endorsement by an independent people but also on recognition by other peoples who pursue the same type of political project. At the same time, any cosmopolitan constitutional system needs to leave space for particularity. It is therefore not accidental that the idea of a ‘margin of appreciation’ is of pivotal significance.
Highlights
Owing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System
The emerging cosmopolitan constitutionalism is based upon three ideas: first, the exercise of state authority must be legitimate from the perspective of those who are not citizens; second, a constitution must embrace fundamental rights and the representation of insiders in order to facilitate the representation of all, including outsiders; third, the authority of the constitution doesn’t just depend on endorsement by an independent people and on recognition by other peoples who pursue the same type of political project
The Convention System has put core ideas of modern constitutionalism into question and replaced them with an alternative vision of constitutional authority.[4]. It has done so by elevating fundamental rights protection to a Cosmopolitan constitutionalism: The case of the European Convention 469 level that is of common concern for the participating states and by submitting their conduct to the () mandatory jurisdiction of the European Court of Human Rights (ECtHR)
Summary
Owing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System. This is regrettable, not least because the Convention has reconfigured national constitutional authority in a cosmopolitan context. The emerging cosmopolitan constitutionalism is based upon three ideas: first, the exercise of state authority must be legitimate from the perspective of those who are not citizens; second, a constitution must embrace fundamental rights and the representation of insiders in order to facilitate the representation of all, including outsiders; third, the authority of the constitution doesn’t just depend on endorsement by an independent people and on recognition. It is not accidental that the idea of a ‘margin of appreciation’ is of pivotal significance
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