From balance to conflict:a new constitution for the EU

As the crisis (and the Union’s response to it) further develops, one thing appears clear: the European Union post-crisis will be a very different animal from the pre-crisis EU. This article offers an alternative model for the EU’s constitutional future. Its objective is to invert the Union’s current path-dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post-crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie the idea of authority on the national level, and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalize within their decision-making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.