Economic constitutionalism(s) in a time of uneasiness : comparative study on the economic constitutional identities of Italy, the WTO and the EU

Abstract:

Constitutionalism has developed in the last two centuries almost exclusively in context of the state. Particularly, its categories and institutional solutions have been fashioned in respect to the functional concerns progressively assumed by the state form of government. In the current situation, a massive process of re-organization of the public space is taking place. States are outsourcing their functions to commonly established international or supranational agencies which often originate autonomous legal orders and, in some cases, even claim constitutional status.

This paper advocates the idea that the monopoly on constitutionalism by the states may be considered an historical contingency and that the ideal inherent in constitutionalism – to achieve fundamental objectives by enabling and limiting political institutions – may be developed also in non-state contexts, originating autonomous constitutional spheres and doctrinal categories in the light of the functional concerns of post-national units.

This paper tests this general thesis in respect to economic constitutionalism(s). After questioning the exclusively state-centered approaches to constitutionalism, a core of constitutional elements shared by the Italian (as a sample of the EU member states), the WTO and EU legal orders is singled out. The concept of Economic Constitutional Identity (ECI) is therefore introduced as the most appropriate device to investigate, according to the methodology of comparative law, the attitudes towards the economic issues of the legal orders at hand. Hence, the ECIs of Italy, the WTO and the EU are analyzed in detail by stressing in turn their divergent and convergent elements. On the basis of this more specific understanding of the characters of the ECIs, criteria for interpreting their interactions are provided in the light of the idea of benefiting from (rather than being concerned with) the uneasiness caused by their diversity.