Book review, Oliver Gerstenberg, Euroconstitutionalism and Its Discontents

While discussing several issues, the book chooses as its main theme the role courts – specifically, those beyond the state – and judicial review have acquired in contemporary constitutionalism. To address the criticism concerning judicial imperialism, made by political constitutionalists against national experiences as well as against the CJEU and the ECtHR, the author highlights the positive features of the «democratic experimentalist conception» of constitutional adjudication. In G.’s words, «constitutional dialogue occurs around and through processes of judicial interpretation. Without claiming for themselves the final word, courts can exert a more indirect – forum-creative and agenda setting – role in the process of an ongoing clarification of the meaning of a right. In exerting this role, courts rely less on a pre-existing consensus, but a potential consensus is sufficient: courts can induce debate and deliberation that leads to consensus» (p. viii). An example is the ECJ and ECtHR case law, which is considered «able to constructively re-open and re-politicize controversies that are blocked at the national level, or which cannot be resolved at the domestic level» (pp. ix-x). Conclusively, G. registers the emergence of a Euroconstitutionalism beyond the state, which also fulfils «the project of radical (or deep) democracy»