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Euroconstitutionalism and its Discontents$
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Oliver Gerstenberg

Print publication date: 2018

Print ISBN-13: 9780198834335

Published to Oxford Scholarship Online: February 2019

DOI: 10.1093/oso/9780198834335.001.0001

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(p.159) 4 Conclusion
Euroconstitutionalism and its Discontents

Oliver Gerstenberg

Oxford University Press

By engaging with democratic-minded objections and rule-of-law based critiques of constitutionalism, this book has suggested that, counterintuitively, a retreat from judicial supremacy becomes the most promising route towards redeeming fundamental social and personal rights under modern conditions of deep moral dissensus and complexity. But this step would indeed amount to an abdication of judicial role and responsibility—as both these critiques fear—unless it goes hand in hand with a moral-practical emphasis on the proceduralizing—that is, forum-creative and agenda-setting—role of courts in the process of a progressive clarification of the meaning of a right. But ongoing deliberation does not mean indefinite postponement of substantive resolution because the underlying proceduralist consensus is robust enough to express a commitment to mutual recognition of participants as stakeholders with legitimate interests. This proceduralist move addresses uncertainty in encouraging joint learning about unforeseen possibilities and limits. It helps legitimize decisionmaking in pluralism by authorizing the participation in the undertakings that concern them and by making a best-practice consensus routinely corrigible. Outcomes are legitimate as long as procedures are sufficiently inclusive to allow citizens whose interpretive views do not prevail to (re-) initiate scrutiny and revision of shared constitutional understandings in the light of new experience. Courts require attentions to relevant reasons. Over time, when interpretive answers have crystallized in the light of experience and mutual reason giving, courts can then shift towards stronger forms of judicial intervention that consolidate best practice. It is this proceduralizing move that Euroconstitutionalism epitomizes.

Keywords:   judicial supremacy, moral dissensus, proceduralization, best-practice consensus, constitutional learning

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