Concepts of Law in Integration Through Law (and the Price of Constitutional Pluralism)
INTEGRATION THROUGH LAW REVISITED: THE MAKING OF THE EUROPEAN POLITY, D. Augenstein, ed., Ashgate, 2011
22 Pages Posted: 18 Jan 2011
Date Written: January 18, 2011
This paper explores the concept of law in European integration studies with a particular emphasis on the conception adopted in the Integration Through Law project which was based in the European University Institute in the 1980s. It argues that notwithstanding claims to the contrary, the conception of law adopted in the project was a legal positivist one and that this is evidenced in its conception of law as the ‘object’ and ‘instrument’ of integration. The first part of the paper develops this thesis by arguing, firstly, that characterizing EU law as the ‘object’ of integration entails a Razian conception of the authority of law which results in the integration of national legal systems, and then, secondly, that law as the ‘instrument’ of integration entails a functionalist conception of law which is necessarily positivist.
The second part of the paper goes on to highlight the tension between this positivist conception of EU law and the federal principle which was central to the ITL project, given that the former relies on the resolution of the question of ultimate authority (the sources thesis brand of positivism) whereas the latter tends towards its irresolution. It argues that the emerging literature on constitutional pluralism in the EU implicitly endorses the federal principle of the ITL project at the cost of the positivist conception of EU law and that this is evidenced by the shift in models of constitutional pluralism from legal positivist conceptions of law to a more Dworkinian ‘principled’ form as exemplified in the work of Mattias Kumm. However, the paper concludes that this shift comes at a price which is potentially problematic in a fragile political community such as the EU, where the stakes are much higher than that of the sovereign state.
Keywords: European Integretation, Integration Through Law, Constitutionalism, Constitutional Theory, Constitutionalisation, Federalism, Sovereignty, Legal Positivism, Functionalism, Constitutional Pluralism
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