This working paper is a review of P. Dobner & M. Loughlin The Twilight of Constitutionalism? (OUP 2010).

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.

The contemporary legal landscape is one of a plurality of normative orders which exist alongside the conventional legal systems of states and public international law. That these systems interact and frequently conflict both with state law and international law and with each other is an increasingly common fact of modern legal practice. The concept of constitutionalism is frequently employed as a way of understanding these post-state regimes as well as a method of managing the inevitable conflicts between legal orders in a pluralist legal universe. In Europe, in particular, constitutionalism has featured prominently legal pluralist discourse in two important respects. Firstly, it has been employed as a way of theorizing non-state legal systems such as that of the European Union and the European Convention of Human Rights. Secondly, constitutionalism has been proposed as a frame within which to understand and manage legal pluralism in Europe and in particular as a framework for the resolution of conflicts between such orders. The the received wisdom in this literature is that pluralism and conflicts between EU and national law are amenable to resolution according to a robustly constitutionalist framework whereas ECHR conflicts with national law are of a more radical pluralist form, and therefore less ‘constitutionalist’. This paper challenges this orthodox position. It traces the genealogy of pluralism in the EU and ECHR orders, concluding that a pluralist conception of EU law cannot be constitutional due to the fact that conflicts between the EU and national law are contests of sovereignty, whose resolution in a constitutional frame is question-begging. The interaction between the ECHR and national legal systems, on the other hand, the paper argues, are precisely the sort of conflict where the concept of constitutionalism can do real work at the post-state level. In presenting this taxonomy as a better way of understanding normative pluralism in Europe, it concludes by introducing an argument against pluralism in the relationship between EU law and national law, arguing that the attitude of national courts such as the German Constitutional Court should be viewed as a form of institutional civil disobedience which is a normal aspect of any constitutional order, rather than requiring the positing of an overarching constitutional frame binding EU and national courts.

This paper examines the state of sovereignty in post-integration Europe. Drawing on
linguistic approaches to law and IR, it interrogates Neil Walker’s conception of ‘late
sovereignty’, in terms of how it manages the problem of continuity and change in concepts in
transition as well as the constitutive and regulative rules of late sovereignty games. The
transition from what the paper calls ‘high sovereignty’ to ‘late sovereignty’ entails a
broadening of the range of actors who play late sovereignty games to include non-sovereign
state entities such as the EU, a redefinition of the ‘particularising’ element of ultimate
authority from territory to function, and an evolution of the criteria for what constitutes a
‘good’ sovereignty claim as stipulated by the regulative rules of late sovereignty games. It
concludes by assessing the relevance of late sovereignty for the trilateral relationship between
the non-continental territories of EU Member States, the Member states themselves and the
EU.

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.

This case note considers the rule of law implications of the European Court of Human Rights’ decision in Gillan and Quinton v. UK (App no 4158/05, 12 Jan 2010, nyr) involving the UK’s stop and search powers under the Terrorism Act 2000.

This Working Paper is a review of Panu Minkkinen's 'Sovereignty, Knowledge, Law' (Abingdon: Routledge, 2009).

This paper examines Europe's Constitutional mosaic by focusing on the constitutional mosaic which makes up European Union constitutional discourse. It identifies the current state of EU constitutional discourse as a mosaic of different trends, the contours of which are briefly traced. It then argues that trends in EU constitutional discourse have ignored or suppressed the idea of sovereignty (hence the small 'c' adjective) and that this has resulted in difficulties both with relation to the conceptual coherence of constitutionalism and affects its usefulness as a way of understanding the polity. It argues that the constitutional idea is incorrigibly linked to the concept of sovereignty and that any constitutional discourse, even at the EU level, must entail sovereignty. It goes on to provide a sovereignty-inspired reading of EU constitutionalism through a particular reading of the European Court of Justice's constitutionalization of the Treaties and in its recent Kadi decision.