Academic Interests
Menéndez' main fields of interest include democracy, fundamental rights and legitimacy, the relationship between national and EU law, the constitutional theory of the European Union and the EU's social dimension.
Background
Agustín José Menéndez is Profesor Contratado Doctor Permanente I3 at the Universidad de León, Spain. Menéndez was researcher at ARENA from 2000 - 2003, and is now guest researcher at ARENA.
Menéndez holds an LLM from the European Academy of Legal Theory (Brussels) and a PhD in law from the European University Institute in Florenze. He was a visiting researcher at the Universidade Nova de Lisboa, at the Centro de Estudios Políticos y Constitucionales (Madrid). He was the sub-director of the Programme of European Studies of the Instituto Universitario Ortega y Gasset (Madrid).
Projects
Lines of Research
The Constitutional Theory of the European Union
This line of research revolves around the elaboration of the theory of European constitutional synthesis. Its basic premise is that the signing of the three foundational Treaties of the European Union opened up processes of structural and substantive constitutional synthesis, framed by the deep fundamental law of the Union which is no other that the collective of national constitutions. The theory of constitutional synthesis makes justice both to the unitary character of European law (which is an unavoidable precondition for law discharging its basic integrative tasks in modern societies) and to its pluralist institutional setting (in which no single institution has been formally or costumarily recognised a last word in constitutional conflicts). It aims at being a normatively conscious exploration of the basic normative insights of state and pluralist constitutional theories of European Community law, following the leads of both Hans Kelsen (as commentator on the post-national law of the United Nations) and Neil D. MacCormick (as legal theorist of the European Union)
Key publications in this line of research:
•(with Fernando Losada), ‘Toma de Decisiones en la Unión Europea. Las Normas Jurídicas y la Política de la Formación del Derecho Europeo’, in Francisco Rubio Llorente y Paloma Biglino (eds.), El Informe del Consejo de Estado sobre la inserción del derecho europeo en el ordenamiento español, Madrid: Centro de Estudios Políticos y Constitucionales, 2008, pp. 339-471, ISBN 9788425914331.
•‘Is European Union law a pluralist legal order?’, in Agustín José Menéndez and John Erik Fossum (eds.), The Post-Sovereign Constellation, Oslo: ARENA Report 4/2008, pp. 233-314.
The Democratic Reconstitution of European Union law
The European Union has become a full-fledged level of government in European societies. Not only in quantitative, but especially in quantitative terms, the daily lifes of European citizens are affected by decisions either positively adopted, or negatively framed, in European decision-making processes. This renders unavoidable the discussion of the democratic legitimacy of the decision-making and substantive contents of European Union law. This line of research aims at both offering an analytical framework within which the question can be properly tackled (mainly by means of disaggregating the legitimacy problem into the consideration of the different institutional and substantive aspects of the problem) and a substantive assessment by reference to three understandings of the European Union as a political community: a functional agency, a federal super-state in the making, and a post-national and cosmopolitan Union.
Key publications in this line of research:
•The European Democratic Challenge, 15 (2009) European Law Journal, pp. 277-308, ISSN 1351-5993
•‘Sobre los conflictos constitucionales europeos. Validez del derecho comunitario y legitimidad democrática de la Unión Europea’, 24 (2007) Anuario de Filosofía del Derecho, pp. 139-196, ISSN 0518-0872
•(together with John Erik Fossum) ‘The Constitution’s Gift’, 11 (2005) European Law Journal, pp. 380-410, ISSN 1351-5993.
The Socio-Economic European Constitution
The structural and substantive principles underpinning the Euroepan socio-economic play a major role in establishing the democratic credentials of the Union. Indeed, the legitimation crisis of the European Union is, above all, a social crisis. This line of research aims at (1) lay down the analytical tools with the help of which to make normative sense of the problem; (2) determine the extent to which the social deficit is to be traced back to the institutional, decision-making or substantive choices enshrined in the complex constitutional law of the European Union; (3) consider the relationship in which the different components of the socio-economic constitution of the European Union stand to each other; and very especially, the normative implications of the design of tax policy and the four economic freedoms.
Key publications in this line of research:
•‘Taxing Europe’, 10 (2004) Columbia Journal of European Law, pp. 297-338; ISSN 1076-6715. Also published in Spanish as ‘El poder de los impuestos. Hacia un poder tributario europeo’, 119 (2003) Revista de Estudios Políticos, pp. 417-46; ISSN 0048-7694.
•‘More Humane, Less Social’, in Miguel Poiares and Loïc Azoulay (eds.), The Past and Future of Eu Law: The Classics of Eu Law Revisited on the 50th Anniversary of the Rome Treaty, Oxford: Hart Publishers, ISBN 9781841137124, Autumn 2009
Wicked Legal Principles, Hideous Legal Systems and the Perversion of Law
The democratic Rechtsstaat presupposes a connection between law and practical reason, which ensures that law does not only integrate society, but does so in a way which gives institutional authority to democratic power. This line of research considers the different ways in which this connection may be severed, and the form of law instrumentalised for purposes at odds with the normatively inspired integration of society. Attention is paid both to the uses of law in authoritarian systems, and in “inverted totalitarian systems”, which render hollow the form of law and place it at the service of a political community which is a hybrid of pre-modern authoritarianism and post-modern technological dystopia.
Key Publications in this line of research:
•Shifting Dogma: From Republicanism to Fascist Ideology under the Early Franquismo’ In Christian Joerges and Navraj Singh Ghaleigh (eds.), Darker Legacies of Law in Europe. Legal Perspectives of a European Order in the Fascist Era and beyond, Hart Publisher, Oxford, 2003, pp. 337-60; ISBN 1841133108.
•‘Bush II's Legal and Constitutional Theory: The Constitution of Emergency between Law and Propaganda’, in Clucas, Johnston and Ward (eds.), Torture: Moral Absolutes and Ambiguities, Baden-Baden: Nomos, 2009, pp. 116-38, ISBN