Page:ELO 1(1), 6–25. European public law after empires.pdf/5

10     Signe Rehling Larsen

international law.^[1] Within the international legal community, states are sovereign and equal. By introducing the principles of supremacy and direct effect, the argument goes, EU law, and especially the case law of the European Court of Justice (ECJ), has introduced a legal revolution that has taken EU law beyond the realm of ‘normal’ international law.^[2] The EU rather constitutes a new legal order that eludes traditional concepts of international law. The EU has led to an erosion of sovereignty that scholars look on either with grim concern as an undemocratic force or else as a promise for a new form of cosmopolitanism that ought to be replicated all over the world.^[3]

There is no doubt that EU law is distinct from the general workings of international law and arguing otherwise remains a minority position within EU law scholarship for good reasons.^[4] Nevertheless, the comparison made in the literature tends to lack historical depth, and for that reason it misses the real significance of EU law. This is because the narrative of the EU’s sui generis nature through the comparison with international law tends to ignore the historical development of the European public law order, including ‘European’ international law, as well as the role played by European empires within it. The ‘ordinary’ international legal order that EU law is compared to tends to be a universal international legal order where political communities, as a rule, are recognised as sovereign states. In today’s world, where more or less the entire globe is parcelled into nation-states, the EU appears as an exception and a mystery; somehow ‘more’ than an international organisation yet ‘less’ than a new sovereign state.

Yet this global legal order is, in historical terms, recent. For most of modernity, European jurists would have found it absurd to think of political communities outside Europe in terms of sovereignty.^[5] Sovereignty only pertained to the world of ‘civilised’, that is, ‘European’ states. This view continued in some form until the 1960s,^[6] when non-Western political communities at large were included in the family of sovereign nations as part of decolonisation.^[7] The ‘universal’

1. The literature is too extensive to cite in full. For the most influential accounts, see Joseph Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ And Other Essays on European Integration (Cambridge University Press 1999); Joseph Weiler, ‘Federalism Without Constitutionalism: Europe’s Sonderweg’ in Kalypso Nicolaïdis and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford University Press 2001). See also the debates about constitutional pluralism and multilevel constitutionalism, Avbelj and Komárek Constitutional Pluralism; Ingolf Pernice, ‘Multilevel Constitutionalism in the European Union’ 27 (2002) European Law Review 511.
2. For accounts of the ECJ’s role in the ‘constitutionalisation’ of EU law, see Joseph Weiler, ‘A Quiet Revolution: “The European Court of Justice and Its Interlocutors”’ 26 (1994) Comparative Political Studies 510; Anne-Marie Slaughter, Alec Stone Sweet and Joseph Weiler, The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in Its Social Context (Hart Publishing 1998); Alec Stone Sweet and James A Caporaso, ‘From Free Trade to Supranational Polity: The European Court and Integration’ in Wayne Sandholtz and Alec Stone Sweet (eds), European Integration and Supranational Governance (Oxford University Press 1998); Christiaan Timmermans, ‘The Constitutionalization of the European Union’ 21 (2001) Yearbook of European Law 1.
3. Martin Loughlin, ‘The Erosion of Sovereignty’ 45 (2016) Netherlands Journal of Legal Philosophy 57; Dieter Grimm, ‘The Constitution in the Process of Denationalization’ 12 (2005) Constellations 447; Dieter Grimm, Sovereignty: The Origin and Future of a Political and Legal Concept (Columbia University Press 2015); Fritz W Scharpf, Governing in Europe – Effective and Democratic? (Oxford University Press 1999). Cf Jürgen Habermas, The Crisis of the European Union: A Response (Polity Press 2012); Jürgen Habermas, The Postnational Constellation: Political Essays (Polity in association with Blackwell Publishing 2001); Mattias Kumm, ‘Beyond Golf Clubs and the Judicialization of Politics: Why Europe Has a Constitution Properly so Called’ 54 (2006) The American Journal of Comparative Law 505.
4. The main advocate for the ‘international’ interpretation of the EU is Bruno de Witte, ‘The EU as an International Legal Experiment’ in Joseph Weiler and Gráinne de Búrca (eds), The Worlds of European Constitutionalism (Cambridge University Press 2012). A more recent interpretation of the EU as international law is Pavlos Eleftheriadis, A Union of Peoples (Oxford University Press 2020).
5. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press 2001) 127.
6. For example, several of Europe’s ‘founding fathers’, including Konrad Adenauer, were not merely of the belief that western civilisation was superior to all other, but that it would be utterly inconceivable ‘that Africa, as a black continent, could be independent alongside the other continents’, as cited by Hansen and Jonsson, Eurafrica 161.
7. For a comparative study of decolonisation, see Martin Shipway, Decolonization and Its Impact: A Comparative Approach to the End of the Colonial Empires (Blackwell Publishing 2008).