Federalism and Jurisdiction

Abstract

This essay argues that we do not need the idea of federation for an appropriate constitutional interpretation of EU law. Federal States constitute a single scheme of government and jurisdiction on the basis of a coherent set of constitutional principles. The EU is no such thing. The idea of a pluralist legal system or dual sovereignty is equally implausible. It follows also that what Kalypso Nicolaïdis has called ‘federal union’ is not really federal at all. In her account, the union has no single scheme of government and no single framework of jurisdiction. This account is correct, but it suggests a model based on an international recognition of the EU by the constituent States, not a federal model. The EU is a union of peoples under an international framework of justice and legitimacy. To say that it is international is neither to challenge the EU’s moral standing nor to diminish its importance. Arguments to such effect entirely misunderstand the power and legitimacy of international institutions.