Constitutional orders constitute political communities – and international orders deriving from them – by managing conflicts that threaten Peace. This essay explores how a European political community can be advanced through EU constitutional law. It is shown that legitimacy of the Union derives from the three aspects of liberty, each of which is relevant for Europe’s Peace. This is evidenced through analysis of migration law in the Union under EU free movement law, mixed external agreements, and the AFSJ. Two types of conflict emerge. The first are static conflicts of interests between the national polities in the EU. These are avoided by ensuring reciprocal non-interference between Member States through deregulation. The second are dynamic conflicts of ideas about positive liberty held by the peoples of Europe that can be resolved through regulation in a European political space. Here, Union law enables a continuous process of re-negotiating a shared European idea of positive liberty that can be accepted as own by each national polity. These solutions to the two types of conflicts correspond to the liberal and republican models for Europe. The claim of this book is that the constitutional design of Europe presents both liberal and republican features and that to be legitimate, EU law needs to address both types of conflict.
Chapter I. Liberty in the Constitutional Construct of Europe
What, if anything, makes EU law constitutional? A core constitutive function of a constitution lies in establishing loyalty as a precondition for majority rule. Three tools help unpack the idea of loyalty: (1) the three aspects of liberty identified by Q. Skinner, (2) A.O. Hirschman’s Voice-Exit-Loyalty model pioneered in EU law by JHH Weiler, (3) relational psychology and R.J. Sternberg’s triangular theory of love. Union law can instill loyalty by advancing liberty in the EU. Only a people who enjoys all the three aspects of liberty (negative liberty, positive liberty, liberty from dependence) can be loyal to others in the Union. The constitutional function of EU law thus lies in advancing liberty and, though liberty, a Union between the peoples of Europe.
Chapter II. A Union of Polities: Negative Liberty
So how did EU migration law regulate the political process before the Lisbon Treaty? EU free movement law regulates the national political process thus limiting interference between Member States. Equal treatment of Union citizens secures virtual representation in the national political process, which determines positive liberty. Elimination of obstacles to free movement in the EU extends membership of national polities, thus advancing liberty from dependence. Together, this structure promotes loyalty within and between national polities. Regulation of third-country national workers in mixed external agreements reveals a different logic: no binding reciprocity in law is established. This causes a trade-off between negative liberty of Member States in the Union and their external positive liberty.
Chapter III. A Political Union: Positive Liberty
The Lisbon Treaty sought to solve this dilemma by forging a European political space. The abolition of functional objectives from the definition of shared powers of the Union subjects the European idea of positive liberty to an ongoing process of EU policy choice. New questions about the constitutional in Union law arise. Without a self-perception of Union citizens as a single polity, legitimacy of European policy choice derives from each national polity. This gives the European political process a composite nature: ideas of positive liberty are first identified in the national political processes and then negotiated in the European political space. This interlocks legitimacy of the Union with legitimacy of each national polity. Union law can increase loyalty in the Union by securing liberty from dependence both between and within each national polity. Two models of legitimizing Union law emerge. Under the liberal model, policy choice is both made and legitimated in the national political process; under the republican model, policy choice is legitimated in the national political process but it is made in the European political space.
Chapter IV. Conflict in Union Law
The Lisbon Treaty re-orients Union law from conflicts of interests to conflicts of ideas. Under the liberal model, EU law secures non-domination as non-interference between European polities by solving permanent cross-polity conflicts of interests through functional Treaty objectives and Treaty rights. Under the republican model, conflicts between the peoples of Europe are not related to permanent interests but to ideas that constantly change. Fixing policy choices in Treaties cannot solve such cross-polity conflicts. EU law will be legitimate and promote loyalty in the EU not by securing non-interference between national polities but by advancing their capacity to develop new ideas of shared European positive liberty. This new role of Union law in regulating republican conflicts prompts a shift from policy choice as an instrument of constitutional conflict-prevention towards the rules and principles of Union law for continuous (re-)solution of conflicts.
Chapter V. EU Court and Liberty from Dependence
Analysis of the AFSJ case law of the Court of Justice of the EU exhibits adjustment in general principles of Union law from the liberal to republican conflicts. The principles in focus are primacy, mutual recognition, solidarity and the scope of Union law. With the changing nature of conflicts, the Court is shifting the legitimating force of these principles from a construct based on enforcement of fixed policy choice towards the principles of EU law that regulate the process of making policy choice. From being a tool for the regulation of politics, European policy choice is increasingly seen as the result of politics.