Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination

Abstract

Legal studies react to the Union's social legitimacy deficit either by funnelling the problem to empirical sociology (accompanied by the familiar call for more transparency and democracy), or by ignoring it altogether. This article argues that the crisis in social acceptance can be traced back to the texture of EU law. Law is more than a body of rules: it is a social practice, a structure of meaning, and a system of beliefs. In this light, national law has a richly textured fabric of cultural resources to rely on, which makes it ‘ours’. In contrast, EU law embodies the fluid surface of consumer identity and appears less ‘ours’. The Union's counter–measures—adding pathos and patina to neutralise our distrust—have proven unsuccessful. Neither will a new written Constitution be particularly helpful. The way out, rather, is coming to terms with the market citizen, rather than believing in, and forcing upon the consumer, stories of shared values and historically situated commonality.