The Place of European Law

Research output: Working paper

Abstract

The essay initially offers a general method of characterizing polities in terms of their response to three core issues; namely, the form of collective agency they represent, the nature of their generative or mobilizing resources, and the type of basic social ontology they endorse. For each core issue we tend to frame our thinking in terms of a binary opposition - popular sovereignty versus other forms of political title, particularism versus universalism and collectivism versus individualism. In the Westphalian, state-centred worlds of high modernity the defining idea of collective agency is that of popular sovereignty, and this form of agency requires and enables both universalist-individualist and particularist-collectivist strands at the levels of generative resources and basic social ontology in order to survive and prosper. Moreover, in this Westphalian universe, the only major political form that accompanies the state is the inter-state or international form, itself largely parasitic upon the state, and contrasting in its characterization in terms of the three core issues. It lacks popular sovereignty, and is only weakly represented along both universalist- individualist and particularist-collectivist dimensions. Once we shift to the late modern world of increasingly transnationalized legal, political, economic and cultural relations we confront a more complex picture. The defining issues and tensions remain the same, but are written onto a configuration of legal and political space no longer organized in terms of a relationship of mutual exclusivity. The EU occupies a very distinctive place within this new tableau. It does not replicate nor does it replace either the state or the international. Rather, it stands between them, incorporates strains of each and interlocks with them both. To grasp the EU’s situation in late modernity, therefore, requires that we map the defining issues of high modernity and their attendant tensions onto the more complex, deeply interpenetrated and shifting authority configuration of which the EU itself constitutes but one, if key, component. Thus we can begin to appreciate how and why the EU’s interconnected capacities to address the three defining predicaments of modernity - the proper source of collective agency, the provenance of the resources of political community, and the balance between individualist and collectivist ontologies, is becoming ever more precarious as it enters its second half century. The EU’s longstanding emphasis upon individualism aligned to a historically contingent form of peace-centred collectivism in response to the ontological question has both helped compensate for and (re)contributed to the difficulties it has encountered in the face of each of the other two questions; namely, its structural weakness in response to the resources question and its self-reinforcing reluctance and precariousness of common cause before the collective agency question. As the EU’s emphasis upon individualism becomes less sustainable with the gradual expansion of its remit, reputation and self-understanding, the deficiencies in the EU’s capacity to address the resources and agency questions become all the more evident and the need to treat them ever more urgent. In turn, this manifests itself as a profound challenge to the place of law within the EU - as a medium that both reflects and seeks to answer these problems. The essay concludes by offering some thoughts on how the EU, and in particular the EU in its legal and constitutional register, may respond to that predicament.
Original languageEnglish
PublisherUniversity of Edinburgh, School of Law, Working Papers
Number of pages60
DOIs
Publication statusPublished - 25 Mar 2010

Publication series

NameEuropa Working Papers
No.2010/01

Keywords

  • Universalism
  • particularism
  • individualism
  • collectivism
  • sovereignty
  • EU
  • constitutionalism

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  • The Place of European Law

    Walker, N., 2012, The Worlds of European Constitutionalism. de Búrca, G. & Weiler, J. H. H. (eds.). Cambridge University Press, p. 57-104 48 p. (Contemporary European Politics).

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