[Editor’s Note: This installment of I•CONnect’s Book Review Series features a review of Oliver Gerstenberg, Euroconstitutionalism and its Discontents (Oxford University Press, 2019).]
—Hilary Hogan, Trinity College Dublin
In Euroconstitutionalism and its Discontents, Professor Oliver Gerstenberg makes a compelling case for a democratic experimentalist vision of constitutional adjudication. Courts, he argues “can induce debate and deliberation that leads to consensus.” (p. viii) Rather than an anti-democratic force, he argues that through their deliberations, courts can lead a process of constructive engagement with the parties in conflict, as well as external actors and stakeholders. This, he suggests, is the most effective means of clarifying the nature and scope of fundamental rights. It requires those stakeholders to “engage in non-hierarchical deliberation and mutual perspective-taking and reason-giving.” (p. 151) Constitutional adjudication becomes a “process in time” which aims to achieve “gradual reform in the light of experience, as social conflicts are better understood.” (p. 44) The only issue, one might venture, is that delay is often easier than tackling challenging and divisive issues head on, and there are some causes that can ill afford to wait.
Yet Gerstenberg does not suggest that courts should shy away from controversy. Importantly, he argues that courts can kickstart “debate and deliberation that may eventually lead to a consensus” by moving ahead of contemporary social norms and values, and “where necessary, trigger social change.” (p. 109) He considers European supra-national courts particularly well placed to engage in this process, as they can “constructively re-open and re-politicize controversies that are blocked at the national level, or which cannot be resolved at the domestic level.” (p. 109) Speaking of the CJEU’s interpretation of the Unfair Terms in Consumer Contracts Directive, for example, he writes that, “the Court exerted its role not so much by pushing Member States in directions they may not wish to go, but rather by setting the stage for, and instigating, a process of gradual interpretative clarification.” (p. 106) Gerstenberg’s analysis rings particularly true for those familiar with the role of the European courts in Ireland’s long-running debate over abortion. The ramifications of the decision of the European Court of Human Rights in ABC v Ireland (App. No. 25579/05) proved to be considerable, although on the face of it, the judgment did nothing more than compel Ireland to introduce legislation (or at the very least, guidelines) to reflect existing jurisprudence. Nonetheless, the ABC decision proved to be vital in sparking a discussion on structural reform within Ireland, culminating in the referendum for the repeal of the Eighth Amendment in 2018.
Yet the author does not fail to examine the limits of this model, where the European courts have produced distinctly unsatisfactory decisions on hotly-contested topics. He examines a series of decisions relating to restrictions on Islamic facial veils, which have provoked particular controversy in mainland Europe. Strong criticism is offered for two of the CJEU’s cases, Case C-157/15 Achbita and Case C-188/15 Bougnaoi, which served as tests for the court’s commitment to fundamental rights. Ultimately, the right to religious freedom, Gerstenberg notes, was trumped by the CJEU’s commitment to economic enterprise. A democratic experimentalist understanding of the case, he points out, would have prioritised the former over the latter. He goes on to examine the European Court of Human Right’s decision in SAS v France (App. No. 43835/11) where the applicant unsuccessfully challenged the introduction of a French national law which banned the full-face veil in public spaces. While one might disagree with the result, he points out that the decision demonstrates the ECtHR’s role as a “transnational arena of public discourse where competing lines of argument can be displayed, weighed, and fought over.” (p.140) While that is undoubtedly true, one might question how much comfort that will be to Europe’s beleaguered Muslim population, who rarely seem to be on the winning side when it comes to religious freedom (cases such as Hamidović v Bosnia Herzegovina (App. No. 57792/15) and Lachiri v Belgium (App. No. 3413/09) are two exceptions).
The author has provided an important service by highlighting the deliberative role our courts can play. As he insightfully notes, “adjudication provides an important service to both democracy and the rule of law by injecting an element of moral complexity and sometimes clarity into public debates which is often short-circuited by resurgent majoritarian impulses and passions.” (p. 140). As there has been increasing interest in deliberative democracy and projects such as Citizens’ Conventions, Gerstenberg’s work is a timely reminder that perhaps it is our European courts that can best serve as deliberative forums. It is a thought-provoking contribution to a growing area of scholarship which seeks alternatives to judicial supremacy.
Suggested Citation: Hilary Hogan, Review of Oliver Gerstenberg, Euroconstitutionalism and its Discontents (Oxford University Press, 2019), Int’l J. Const. L. Blog, June 17, 2020, at: http://www.iconnectblog.com/2020/06/book-review:-hilary-hogan-on-oliver-gerstenberg’s-“euroconstitutionalism-and-its-discontents”