Philosophical foundation of European Union law

PHILOSOPHICAL FOUNDATIONS OF EUROPEAN UNION LAW

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PHILOSOPHICAL

FOUNDATIONS OF

EUROPEAN UNION

LAW

EDITED BY

JULIE DICKSON

AND

PAVLOS ELEFTHERIADIS

1

Great Clarendon Street, Oxford, OX2 6DP,

3

United Kingdom

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CONTENTS

Contributors ix

1 INTRODUCTION: THE PUZZLES OF EUROPEAN UNION LAW 1

Julie Dickson and Pavlos Eleftheriadis

PART I: THE LEGAL SYSTEM

2 TOWARDS A THEORY OF EUROPEAN UNION LEGAL SYSTEMS 25

Julie Dickson

3 NOT A SYSTEM BUT AN ORDER: AN INTER-INSTITUTIONAL

VIEW OF EUROPEAN UNION LAW 54

Keith Culver and Michael Giudice

4 HARMONIC LAW: THE CASE AGAINST PLURALISM 77

George Letsas

5 JUDICIAL DIALOGUE IN THE EUROPEAN UNION 109

Anthony Arnull

PART II: POLITICAL FOUNDATIONS

6 DECIPHERING THE POLITICAL AND LEGAL DNA OF

EUROPEAN INTEGRATION: AN EXPLORATORY ESSAY 137

J.H.H. Weiler

7 CITIZENSHIP AND OBLIGATION 159

Pavlos Eleftheriadis

8 CONSTITUTIONALISM IN THE EUROPEAN UNION:

PIPE DREAM OR POSSIBILITY? 189

W.J. Waluchow

9 THE MORAL POINT OF CONSTITUTIONAL PLURALISM:

DEFINING THE DOMAIN OF LEGITIMATE INSTITUTIONAL

CIVIL DISOBEDIENCE AND CONSCIENTIOUS OBJECTION 216

Mattias Kumm

10 THE IDEA OF EUROPEAN DEMOICRACY 247

Kalypso Nicolaïdis

11 STATECRAFT AND THE FOUNDATIONS OF EUROPEAN

UNION LAW 275

Ari Afilalo and Dennis Patterson

PART III: CONSTITUTIONAL VIRTUES

12 PRECEDENT AND THE COURT OF JUSTICE: A JURISPRUDENCE

OF DOUBT? 307

Takis Tridimas

13 MONISM AND FUNDAMENTAL RIGHTS 331

Lorenzo Zucca

14 EUROPEAN INTEGRATION AND THE RULE OF LAW IN

FOREIGN POLICY 354

Geert De Baere

15 SOLIDARITY IN THE EUROPEAN UNION: PROBLEMS

AND PROSPECTS 384

Andrea Sangiovanni

16 THE PROBLEM OF JUSTICE IN THE EUROPEAN UNION: VALUES,

PLURALISM, AND CRITICAL LEGAL JUSTICE 412

Sionaidh Douglas-Scott

Index 449

viii CONTENTS

CONTRIBUTORS

Ari Afilalo, Professor of Law, Rutgers-Camden School of Law.

Anthony Arnull, Barber Professor of Jurisprudence, University of Birmingham.

Keith Culver, Professor and Director, Okanagan Sustainability Institute, University of British

Columbia.

Geert De Baere, Assistant Professor of International Law and EU Law at the Faculty of Law and

Senior Member at the Leuven Centre for Global Governance Studies, University of Leuven.

Julie Dickson, Faculty of Law, University of Oxford, and Fellow and Tutor in Law, Somerville

College, Oxford.

Sionaidh Douglas-Scott, Professor of European and Human Rights Law, University of Oxford.

Pavlos Eleftheriadis, Faculty of Law, University of Oxford, and Fellow and Tutor in Law,

Mansfield College, Oxford.

Michael Giudice, Associate Professor of Philosophy, York University, Toronto, Canada.

Mattias Kumm, Professor for ‘Rule of Law in the Age of Globalization’, Social Science Research

Center & Humboldt University, Berlin, and Inge Rennert Professor of Law, New York

University School of Law.

George Letsas, Reader in Philosophy of Law and Human Rights, University College London.

Kalypso Nicolaïdis, Professor of International Relations, University of Oxford.

Dennis Patterson, Chair in Legal Theory and Legal Philosophy at the European University

Institute, Florence; Board of Governors Professor of Law and philosophy, Rutgers University,

New Jersey, USA; Professor of International Trade and Jurisprudence, Swansea University.

Andrea Sangiovanni, Lecturer, Department of Philosophy, King’s College London.

Takis Tridimas, Sir John Lubbock Professor of Banking Law, Queen Mary University of

London; Professor and Nancy A Patterson Distinguished Faculty Scholar, Pennsylvania State

University.

W.J. Waluchow, Professor of Philosophy and Senator William McMaster Chair in Consti￾tutional Studies, McMaster University.

J.H.H. Weiler, NYU School of Law.

Lorenzo Zucca, Reader in Jurisprudence, King’s College London.

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1

Introduction: The Puzzles of European

Union Law

Julie Dickson and Pavlos Eleftheriadis

This is a collection of new and original essays discussing the philosophical foundations

of European Union law. They are original in two senses. First, they seek to offer novel

understandings of important constitutional and institutional aspects of EU law.

Second, they show that the European Union is itself a new subject matter for legal

and political philosophy: one which casts old problems in a very new light.

1 The Nature of the Questions

In the not so distant past, legal and political philosophy examined the law of states.

This was the primary subject matter, for example, of works by Hans Kelsen, Alf Ross,

HLA Hart, Lon Fuller, Ronald Dworkin, Joseph Raz, John Finnis, and of many other

authors whose writings form the canon of contemporary philosophy of law. Until

recently at least, few of them ventured systematically to discuss legal phenomena and

institutions beyond state law. When they did so, they sought in large part to assess the

international domain by identifying differences from and similarities with the national

domain, which they took to be the paradigm case. HLA Hart, for example, expressed

doubts about the nature of international law as law, because it did not sufficiently

resemble national law in certain relevant respects, and Hans Kelsen proposed that the

best account of international law was that of a national legal system with global scope.1

Those days are now firmly gone. International organizations and multilateral

international treaties and institutions—such as those associated with the UN, the

WTO, the IMF, the World Bank and, of course, the European Union—have prolifer￾ated and are now constituted by rich and complex legal materials. They have created

1 HLA Hart, The Concept of Law, 2nd edn, (Oxford: Oxford University Press, 1994), ch X; Hans Kelsen,

Pure Theory of Law, Max Knight (trans) (Berkeley, CA: University of California Press, 1967), 328–44.

real and practically relevant law that is applied by pluralistic and decentralized legal

communities. These non-state laws and institutions have acquired a prominent role in

political negotiations and in legal practice. They strongly influence both domestic

public affairs and business transactions. Such phenomena are now offering a distinct

paradigm of their own, a thriving example of rich and effective non-state law.

Legal and political philosophy started considering such phenomena more seriously

as the relevant changes gathered pace. There is already a great deal of new and interest￾ing work on the subject.2 Nevertheless, the theoretical task of adequately understanding

and evaluating such phenomena has proven remarkably difficult. Our established

analytical tools, designed to characterize national institutions and structures, may

prove too crude to account for the complexity of these new global arrangements. At

the very least, to say that the international resembles the national but that it is a less

complete instance, is not good enough. What the study of international institutions

has shown is that the phenomena may not be as similar to national legal phenomena

as some earlier theorists thought. The international appears to be a distinct domain and

may thus require distinct concepts and tools in order adequately to understand it.

The international polity which exhibits this distinctness at its clearest is the Euro￾pean Union. Part international organization and part federation, the EU possesses

distinctive institutions with executive, legislative, and judicial functions. What is the

Union? Is it a species of international organization, a federation of some kind, or does

it possess a sui generis supra-national character that defies easy, or perhaps any,

categorization? What exactly is the status and function of the Court of Justice in the

jurisdictions that jointly constitute the EU? What bearing does the distinctive charac￾ter of the Article 267 TFEU preliminary ruling procedure have on questions such as

whether the EU possesses a single legal system, and whether any such legal system now

encompasses the legal systems of the Member States?

The EU recognizes distinct sources of law and has developed its own legal doctrines

regarding the far-reaching impact and enforceability of its laws, such as the doctrines

of direct effect, supremacy, and Member State liability. These doctrines have, to a

significant extent, been accepted by the courts and institutions of the Member States

such as to create a European area of law and institutions where the international and

the national merge. As a result, the Union exercises considerable political power over

the Member States and has far-reaching effects on the lives of Union and Member

State citizens. The Union is also increasingly eager to play a meaningful role on the

international stage in addressing contemporary challenges of security and defence.

2 See for example S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford: Oxford

University Press, 2010), N Tsagourias (ed), Transnational Constitutionalism: International and European

Perspectives (Cambridge: Cambridge University Press, 2007), F Tesón, A Philosophy of International Law

(Boulder, CO: Westview Press, 1998), A Buchanan, Justice, Legitimacy, and Self-Determination: Moral

Foundations for International Law (Oxford: Oxford University Press, 2004). For the political philosophy of

international relations see for example CR Beitz, Political Theory and International Relations, 2nd edn

(Princeton, NJ: Princeton University Press, 1999), Onora O’Neill, Bounds of Justice (Cambridge: Cambridge

University Press, 2000).

2 JULIE DICKSON AND PAVLOS ELEFTHERIADIS

Other questions arise out of the ambitious and ever-evolving interpretation of the

Union’s institutional framework by the Court of Justice (and other EU institutions).

What does it mean to say, as the Court frequently does, that the EU and its law are

‘autonomous’? How seriously are we to take the Court’s claims that EU law represents

a ‘new legal order’, and constitutes a distinct legal system? Are traditional international

law distinctions between monism and dualism helpful in understanding relations

between EU law and national law? And what happens to Member States’ national

constitutions and legal systems if we take the claims of the Court of Justice at face

value? Is the Court evolving the principle of primacy as a successor to more traditional

EU categories of direct effect, indirect effect, and incidental effect, as some prominent

legal scholars believe? In light of the Court’s sometimes ambitious interpretation of the

citizenship provisions in the Treaties, and in light of the concept of citizenship more

generally, what are the rights and duties inherent in EU citizenship, and what duties, if

any, do citizens of one Member State owe to the citizens of other Member States? In

various ways that these questions are set to reveal, the EU is special and its law defies

traditional categories of legal and political analysis.

Such questions are complex, and any answers to them likely to be deeply contested.

They are philosophical and legal at the same time. Although a great deal of existing EU

scholarship attempts to address aspects of these challenges, much of this scholarship

fails to address the deeper philosophical difficulties and does not adequately draw on

and develop insights from the philosophy of law and political philosophy. Similarly,

much insightful work hailing from legal and political philosophers regarding inter￾national institutions has paid insufficient attention to the European Union as a distinct

kind of supra-national legal project. Jeremy Waldron has recently claimed that legal

philosophers’ failure adequately to analyse and explain aspects of international law is

‘nothing short of scandalous’, and that such theorising is ‘the issue of the hour’.

3 As

regards EU law, it is our belief that this international polity remains particularly

inadequately theorized, and that the time has come for more sustained philosophical

consideration in this regard.

This book accordingly brings together a diverse group of legal and political philoso￾phers, constitutional theorists, and legal scholars, and invites them to reflect on certain

challenges facing the contemporary European Union. We hope that the book will be

read as a whole. Its contributors bring different skills and approaches and the chapters

are intended to complement one other. Some contributors would identify themselves

primarily as legal scholars and bring to the project a much-needed depth of under￾standing of how EU law actually works. Others would more readily self-identify as

legal and political philosophers who have come to see the EU as a fascinating experi￾ment and novel testing-ground for their theories. In our view, it is in virtue of this

distinctive combination of rich legal understanding and analysis, and penetrating

3 J Waldron, ‘Hart and the Principles of Legality’ in C Grant, B Colburn, A Hatzistavrou, and MH Kramer

(eds), The Legacy of H.L.A. Hart, Legal, Moral and Political Philosophy (Oxford: Oxford University Press,

2008), 69.

INTRODUCTION: THE PUZZLES OF EUROPEAN UNION LAW 3

theoretical insights from legal and political philosophy, that progress will be made in

understanding, evaluating, and assessing the EU and its law.

The book is divided into three parts. The first part discusses whether there is

an EU legal system, and considers what the character of any such system might

be. The second part discusses the general political and political-philosophical prin￾ciples according to which we should justify aspects of the European Union and

its institutions. The third part concerns the constitutional virtues that underlie and

inform European Union treaties and law at this particular stage in the Union’s

development.

2 Philosophical and Constitutional

Foundations of the Contemporary EU:

Some Intellectual Context

In Section 3 below, we present some main topics and points of argument from the

contributions to this volume. Our view, however, is that, prior to introducing our readers

to the particular essays featuring here, it is valuable to discuss in more general terms the

intellectual and other background informing the questions which those chapters discuss.

In the remainder of the present section, then, we take each of the three main areas which

the book addresses in turn—the legal system, political foundations, and constitutional

virtues—and offer some thoughts on the philosophical and constitutional issues, and on

the scholarship attempting to address those issues, which we regard as particularly

important in understanding and evaluating the contemporary EU.

(A) The Legal System

The first part of the book discusses whether there is an EU legal system, and, if any

such system can be said to exist, the relation of that system to the legal systems of the

Union’s constituent Member States. These issues require us to revisit some fundamen￾tal jurisprudential questions concerning the nature of law. Many theorists believe that

the nature of law and the idea of a legal system are closely connected. Others find the

idea of a legal system consisting of individuated and legally validated norms an

unfortunate misconception. So when we ask, ‘Is there an EU legal system?’, we bring

these wider questions in general philosophy of law to bear upon the law of the EU.4

It has long been claimed in much contemporary legal philosophy that in order

adequately to understand the nature of law, we must consider and explain its apparently

4 The legal philosopher who examined this question with the greatest thoroughness and whose work has

had most lasting effect is Neil MacCormick His major work in this regard is N MacCormick, Questioning

Sovereignty (Oxford: Oxford University Press, 1999). See also N MacCormick (ed), Constructing Legal Systems:

‘European Union’ in Legal Theory (Springer Press, 1997).

4 JULIE DICKSON AND PAVLOS ELEFTHERIADIS