The Societal Constitution of Europe: Matching Legal and Social Theories
Centre of Excellence in the Foundations of European Law and Polity University of Helsinki University of Helsinki, Finland
A sociology of European integration and the (emerging) European society has to take into account that today's Europe, as epitomized by the European Union and also the Council of Europe, is largely a legal, or even judicial, construction. At the European level, integration is thus based on "integration through law" and the core of the society to-be may be found in the "community of law" created by courts and legislators. Current debates on the constitution of Europe are just another instance of the supposedly legal nature of European society-building.
Yet, the legal side is only half of the story: Law rests on social foundations (as well as modern society may rest on legal foundations), and legal theories contain what has been aptly termed "hidden social theories". Legal practices rely on normative reconstructions of social realities, legal thinking builds on classical as well as contemporary social thought and, in the end, the legal field is nothing but a social field, enmeshed in struggles about power and meaning which make up society. Therefore, legal visions of the European society have to be matched with the state-of-the-art in sociological theorizing about Europe.
Two problems arise: On the one hand, "Europe" lacks understanding from both legal and social theory if it is to be taken seriously as eminent (legal and social) form of transnational integration processes. Law as well as sociology suffer, in this respect, from long-standing methodological nationalisms (including their international derivatives). On the other hand, the collaboration between both disciplines is inhibited by persistent dichotomies and demarcations that set the normative against the factual and the legal insider against the sociological outsider. Thereby, commonalities between both perspectives are neglected and mutual commitments overlooked.
In order to clarify the societal (i. e. socio-legal) constitution of Europe, this contribution aims to confront and combine the insights of theories from both sides of the rubicon, employing systems theory, discourse theory and field theory as well as different strands of constitutionalist theorizing. Last but not least, the performative dimension of these theories will be discussed - as scientific laboratories of "Europe in the making".