The Function of a European Basic Law: a Question of Legitimacy

This paper addresses the function of a European basic law. The author argues that if the basis of the original legitimising act of a basic law is weak, or even nonexisting, a need arises for succeeding or continuous legitimising acts. The concept of continuous legitimation implies that the basic law has to be legitimised through the ongoing political consensus formation giving the basic law a dynamic nature. Furthermore, the need for continual legitimation juxtaposed with a dynamic nature of a basic law obstructs the idea of a disabling function of a basic law. The author concludes that the dynamic nature of the European basic law and its corresponding concept of legitimacy – ever forming and reforming overlapping consensuses among the decisionmaking actors in low as in high politics – can only underpin an enabling European basic law.