András Jakab, Sustainability in European Constitutional Law (July 1, 2016). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-16. Available at SSRN
Sustainability, as compared to the rule of law, human rights, sovereignty or democracy, is a relatively new constitutional key concept. It is mentioned explicitly more and more in constitutional discourses, and – even more importantly – it helps to reconstruct a number of current constitutional debates under one conceptual umbrella. Sustainability comprises different responses to long term social challenges which cannot efficiently be responded to via democratic mechanisms. Democratic mechanisms are based on election terms and which are, consequently, structurally short-sighted. By ‘European constitutional law’, I mean in this paper both the primary law of the EU and domestic constitutional documents. In the present paper I am first going to sketch the nature and the types of the sustainability challenges that contemporary societies face, with a special focus on Europe (environmental, demographic and financial). In the main part of the paper, I am going to show possible constitutional responses to these challenges. Finally, I will summarize the main argument of the paper which is a suggestion to set up an economic constitutional court consisting of economists with the power to annul laws if these contradict the principles of sustainability.