The Return of the Contract: Problems and Pitfalls of European Constitutionalism

The impressive literature agonising over the question of whether or not the European Union ‘does have’ a constitution, or whether it should have a ‘better’ one, illustrates, at the level of law and legal discourse, that the European Community has, via monetary union, undergone a metamorphosis from common market to a political union, and raises the question of its constitutional foundation. With remarkable fervour legal scholars hold that, yes, there is a constitution, ¹ or, no, there is none. ² Those who affirm the existence of a European Constitution differ over the necessity of a new and better constitutional document. ³ Those who deny its existence are divided as to whether or not a constitution would be a desirable, or even realistic, project. ⁴ After surveying the ongoing debate, one wonders what the problem really is.