Wednesday 4 February 2009 at 1315
Public Law Discussion Group
A European Res Publica
Speaker: Dr. Ola Zetterquist, Gothenburg University, Sweden.
Venue: Oxford Law Faculty Senior Common Room
UPDATE: 29TH JAN 09 - YOU CAN NOW DOWNLOAD Dr. ZETTERQUIST'S PAPER (See foot of page) A EUROPEAN RES PUBLICA – SHORT ABSTRACT The article analyses the fundamental constitutional enigma of the European Union (EU), namely whether the EU can be considered as a (from its Member States) separate and independent constitutional legal order. The EU does not fulfil the requirements for being a state but neither is it adequate to define it as an international organisation of the traditional kind. Hence it is that the EU is often referred to as a legal order sui generis, i.e. of a unique character that defies traditional definitions and which is thus irreconcilable with constitutional law, at least if the doctrine of supremacy of EC-law is to be taken seriously. More specifically, the notion of an independent and separate EU is at odds with the idea of the sovereign state. My claim is that the notion of the EU as a legal order sui generis is overly simplistic and too much influenced by the models of the sovereign state and sovereignty (as these are defined in the vein of Thomas Hobbes). The key component in the Hobbesian idea of sovereignty is freedom as non-interference (regardless of the reasons for the interference). A sovereign state is consequently a state that is free from, i.e. not interfered with by, external actors like, for example, the EU. Put differently, either the EU is sovereign or the Member States are sovereign. By shifting the perspective to a neo-Roman republican understanding of freedom as non-domination the constitutional picture of the EU will become more nuanced. Res publica is best understood as what citizens hold in common and above their narrow self-interest. Res publica departs from an idea of the legal order as a species of moral dialogue based on reason thereby appealing to the rational assent of its members. Viewed as an ongoing moral dialogue striving for coherence and rationality in the law, res publica is better understood as a dynamic concept than as a fixed and unalterable set of values. According to a republican notion of the constitution the purpose of the law is to eliminate the possibility of arbitrary domination rather than merely securing non-interference. For that reason, not all interference is to be considered as a restriction of freedom but only those restrictions that cannot be justified according to the res publica. Republican legal theory thus places strong emphasis on the moral quality of the law and its conformity with reason (recta ratio) and it invariably requires a system of checks and balances in order to avoid arbitrary domination. Viewed through the republican prism it can be argued that the EU indeed does represent an important advancement in securing freedom as non-domination without implying that the EU must become a state. Put differently, it is one thing to be free from the laws of the EU and another one to be free by them. This is a theme that recurs in the constitutional case law of the ECJ and it is striking that practically all the constitutionalising cases have been justified with reference to the legal protection of the individual. The fundamental enigma can thus be rephrased as a clash between two diverging concepts of freedom. Whereas the EU will always be at odds with the idea of sovereignty (however framed) it will be much easier to reconcile with the republican ideal.
For more information please see the event website or contact: Hayley J. Hooper
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Organised by the Public Law Discussion Group
