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It has become a standard critique of European integration that the upward transfer of sovereignty in market-related matters leads to the fragmentation of statehood between the supranational, European level and the largely incapacitated nation-states that retain jurisdiction over social and distributive policies. My article takes up this critique in the elaborate version of one of Germany’s leading post-war constitutional theorists, Ernst-Wolfgang Böckenförde, whose approach has been influential in how German constitutionalism relates to the project of European unification. In this account, vertical integration uses law to sever economics from democratic politics, fragments the concern for the common good of citizens and undermines the unity of statehood. I contrast this account to instances of horizontal fragmentation of statehood, such as those underway in member-states such as Hungary or Poland where the nation state’s constitutional structures are coming undone at the hands of authoritarian populists. The European Union’s role of defending the rule of law within its constitutive states seeks to restore their normative integrity and, as such, is best understood as a role of vertical de-fragmentation of political and constitutional transformations at the domestic level. The question if statehood can be established at the European level gains greater urgency and complexity in light of these developments.


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6 Sep 2022
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  • Subject
    • Comparative and Foreign Law

    • Jurisprudence

  • Journal title
    • German Law Journal

  • Volume
    • 19

  • Issue
    • 2

  • Pagination
    • 403-434

  • Date submitted

    6 September 2022