History, System, Principle, Analogy: Four Paradigms of Legitimacy in European Law

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Winter 1-1-2021


The constitutional dimension of European Union law promises—in its most ambitious forms—reflexive structures of post-national democratic community. But this ambition poses profound philosophical challenges for how we think about the legitimacy of European judiciaries—the relation between legal decision-making and the ideal of post-national self-authorship. European constitutional law not only coordinates new forms of public power, but its jurisprudence also normatively justifies (or fails to justify) that power in what must be similarly reflexive discourses of legitimation.This article argues that theorists of European law have thus far paid too little attention to the thicker socio-cultural registers through which this legitimation occurs. They have thereby settled with an overly narrow legalistic or procedural view of constitutionalism, which restricts analysis of the ‘constitutional imaginaries’, or interpretive paradigms, underpinning divergent legitimations of law.This article develops a framework for such an analysis by utilizing a cultural study of law and strands of American constitutional theory. The article’s main aim is to formulate a typology of interpretive paradigms presently at work in European law and to trace their relation to the normative hopes of reflexive constitutionalism. The argument articulates four distinct paradigms in European legal thought, namely those structured by history, system, principle, and analogy. While the former three paradigms comprise the predominant coordinates of contemporary European legal rationality, they also remain unhelpfully tied in crucial respects to the Westphalian sovereigntist mode of legal authority. Only the last paradigm—grounded in analogical reasoning—offers the seldom-seen but essential bearing, I argue, of transformative post-national constitutional law. As claims made analogically, concerns become interdependent and one’s autonomy becomes tied to the interpretations of others. Analogical thinking thereby offers unexplored resources for reviving post-sovereign, non-hierarchical practices of political life.The article makes two analytic and normative contributions: (1) an understanding of how common varieties of legal reasoning contribute to the de-politicization of post-national government—and thereby to European law’s political deficits that leave it vulnerable to ideological capture or populist resurgence; and (2) novel grounds for the democratic legitimacy of Europe’s constitutional project.Part I, drawing on recent developments in economic governance and fundamental rights jurisprudence, develops the typology of interpretive paradigms that characterize prevailing European constitutional discourses: history, system, principle. This typology helps to critically assess how these paradigms increasingly steer European constitutionalism toward fragmentation and ideological consolidation. Part II formalizes this critique as the presence of a common fault—continued investment in the ‘coherence’ of particular legal orderings that negates law’s reflexivity. Denying coherence, reflexivity requires instead what I term ‘intelligibility’—law’s character as an object whose normative commitments are open-ended and must be re-interpreted over time. In response, Part III develops the fourth paradigm—analogy—as a framework of legal thought that sustains the intelligibility of law. Part IV makes these points concrete, locatingnascent principles of analogical reasoning in European jurisprudence, notably in the exemplary recent Opinion of Advocate General Mengozzi in X and X v Belgiumon the provision of humanitarian visas under EU law.

Publication Title

Columbia Journal of European Law

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