Pavlos Eleftheriadis

Biography

Pavlos Eleftheriadis is Professor of Public Law at the University of Oxford.

He has been a Fellow of Mansfield College, Oxford since 2003. He specialises in European Union law, public law and jurisprudence. His research interests are in jurisprudence and in constitutional and administrative law both in their domestic, international and cosmopolitan dimensions.

He has defended an ethical view of law in jurisprudence and has argued against legal postivism. In his book Legal Rights (Oxford University Press, 2008) he developed an ethical theory of law and rights within a broadly Kantian egalitarian framework. He maintains an interest in the theory of rights and has published essays in the right to health such as 'Global Rights and the Sanctity of Life' in Glenn Cohen (ed), The Globalization of Health Care (Oxford University Press 2013) and 'A Right to Health Care' (2012) 40 Journal of Law, Medicine and Ethics 268. His most recent essay in jurisprudence is: 'Natural Reason and the Ethical Foundations of European Law' (Revue Européene du Droit , 2021).

He offered a general theory of European Union law in his book A Union of Peoples: Europe as a Community of Principle (Oxford University Press, 2020). He is also the co-editor (with Julie Dickson) of the collection of essays The Philosophical Foundations of European Union Law (Oxford University Press, 2012). He is the author of the chapter 'The Institutions, 2nd ed. ' in David Vaughan and Aidan Robertson (eds), The Law of the European Union (Oxford University Press 2016). His essay 'The Future of Environmental Rights in the European Union ' in Philip Alston (ed), The European Union and Human Rights (Oxford University Press 1999) was an early discussion of environmental rights in EU law. He returned to this theme in 'Environmental Rights in the EC Legal Order' (2007) 27 Yearbook of European Law. More recently he has written on the law of the Eurozone rescue, for example in 'The Euro and the German Courts' (2012) 128 Law Quarterly Review 216 and in 'Democracy in the Eurozone' in WG Ringe & P Huber (ed), Legal Challenges Arising out of the Global Financial Crisis: Bail-outs, the Euro, and Regulation (Hart Publishing 2014) and in the working paper 'Solidarity in the Eurozone' (2019) Bank of Greece Working Papers Series, which he wrote while a visiting fellow at the Bank of Greece.

In constitutional law he has defended an interpretation of the unwritten constitution of the United Kingdom as higher law in essays such as: 'Two Doctrines of the Unwritten Constitution' (2017) 13 European Constitutional Law Review and 'Parliamentary Sovereignty and the Constitution' (2009) Canadian Journal of Law and Jurisprudence.

His currents research interests include:

climate change, sustainability and the law
constitutional fundamentals
the idea of a 'civil condition' in Kant

He was educated at the University of Athens (BA, 1990) and the University of Cambridge (LLM, 1991, PhD, 1995). He was a visiting professor of law at Columbia Law School (2001), a visiting scholar at the University of Toronto (2012), and a Distinguished Global Fellow in Residence at Boston College (2013). He was awarded the Bodossaki Prize for Law in 2005.

He is a barrister in England and Wales and practises before the English courts in public law, EU law and planning law rom Francis Taylor Building in the Temple. Some of his recent cases involved challenging the Brexit process on constitutional grounds, including the case of Wilson v Prime Minister [2019] EWCA Civ 304 and challenging the decision of the European Parliament to recover the salary of a parliamentary assistant from an MEP before the General Court of the EU in Case T-249/21, SN v European Parliament.

He occasionally writes on constitutional, legal and general European political issues for the press. His articles have been published by the Financial Times, the Wall Street Journal, the Telegraph and the Greek newspaper 'To Vima', as well as the legal blog 'Verfassungsblog'. An interview on climate change and planning law with Lexis Nexis is here.

The BBC's discussion of his argument on a second refrendum is here.

You can follow him on twitter at @PEleftheriadis.

Publications

Recent additions

P Eleftheriadis, ' The Status of European Union law following Withdrawal from the EU' in Michael Humphries (ed), National Infrastructure Planning Handbook, 4th ed. (forthcoming, London: Bloomsbury Professional, 2022) (Bloomsbury Professional 2022) (forthcoming)
P Eleftheriadis, 'Cosmopolitanism' in Catherine Valcke, Jan Smits and Jaakko Husa (eds), Elgar Encyclopedia of Comparative Law (Edward Elgar 2022) (forthcoming)
P Eleftheriadis, 'Rights in the Balance' (2022) Ius Cogens

Chapter (21)

P Eleftheriadis, ' The Status of European Union law following Withdrawal from the EU' in Michael Humphries (ed), National Infrastructure Planning Handbook, 4th ed. (forthcoming, London: Bloomsbury Professional, 2022) (Bloomsbury Professional 2022) (forthcoming)

P Eleftheriadis, 'Cosmopolitanism' in Catherine Valcke, Jan Smits and Jaakko Husa (eds), Elgar Encyclopedia of Comparative Law (Edward Elgar 2022) (forthcoming)

P Eleftheriadis, 'Cosmopolitan Legitimacy' in Jorge Fabra (ed), Jurisprudence in a Globalized World (Edward Elgar 2020)

P Eleftheriadis, 'Constitutional Rights as Moral Judgments ' in Massimo La Torre, Leone Niglia and Mart Susi (eds), The Quest for Rights: Ideal and Normative Dimensions (Edward Elgar 2019)

P Eleftheriadis, 'Constitutional Change Through Deliberation' in Ron Levy, Hoi Kong, Graeme Orr and Jeff King (eds), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press 2018)

P Eleftheriadis, 'The European Union's Relationship to International Law: Lessons from Brexit' in Davies & Avbelj (ed), Research Handbook on Pluralism and EU law (Edward Elgar 2018)

P Eleftheriadis, 'The Institutions, 2nd ed. ' in David Vaughan and Aidan Robertson (eds), The Law of the European Union (Oxford University Press 2016)

ISBN: 978-1-90-450111-4

P Eleftheriadis, 'Democracy in the Eurozone' in WG Ringe & P Huber (ed), Legal Challenges Arising out of the Global Financial Crisis: Bail-outs, the Euro, and Regulation (Hart Publishing 2014)

In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a genuine monetary union promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union - and the Eurozone within it - can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.

ISBN: 9781849464390

P Eleftheriadis, 'Global Rights and the Sanctity of Life' in Glenn Cohen (ed), The Globalization of Health Care (Oxford University Press 2013)

ISBN: 9780199917907

P Eleftheriadis, 'Hart on Sovereignty' in Andrea Dolcetti, Luís Duarte dAlmeida and James Edwards (eds), Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013)

P Eleftheriadis, 'Austin and the Electors' in Michael Freeman & Patricia Mindus (ed), The Legacy of John Austin's Jurisprudence (Springer 2012)

P Eleftheriadis, 'Federalism and Jurisdiction' in Geert de Baere, Elke Cloots (ed), Federalism and EU Law (Hart Publishing 2012)

Julie Dickson and P Eleftheriadis, 'Introduction: The Puzzles of European Union Law' in Julie Dickson & Pavlos Eleftheriadis (ed), Philosophical Foundations of European Union Law (Oxford University Press 2012)

P Eleftheriadis, 'The Structure of European Union Law' in Thomas Streinz (ed), The EU and National Constitutional Law (Boorberg 2012)

P Eleftheriadis, 'Οι Ελληνικές Καταβολές του Κράτους Δικαίου [The Greek Origins of the Rule of Law] ' in Pavlos Sourlas, John Kittmer, Ana Karapanou (ed), Ελληνο-Βρετανικές Σχέσεις: Πτυχές της Πρόσφατης Ισορίας τους [British-Greek Relations: Aspects of their Recent History] (Hellenic Parliament Foundation for Parliamentarism adn Democracy 2012)

P Eleftheriadis, 'Citizenship and Obligation' in Julie Dickson and Pavlos Eleftheriadis (eds), Philosophical Foundations of European Union Law (Oxford University Press 2012)

ISBN: 978-0-19-958877-0

P Eleftheriadis, 'The Institutions' in David Vaughan QC and Aidan Robertson QC (eds), The Law of the European Union (Oxford University Press 2011)

ISBN: 978-1-90-450111-4

P Eleftheriadis, 'Art and Moral Dilemmas' in Johannes Odenthal and Elina Kountouri (eds), Kalliopi Lemos: A Sculptural Trilogy About Europes Fragile Borders (Göttingen: Steidl 2010)

In the last three years the artist Kalliopi Lemos has constructed three large sculptures consisting mainly of boats used by illegal immigrants to cross from Turkey into Greece. These boats were discarded on the island of Chios, where Lemos discovered them. She exhibited these three sculptures in public settings in Athens, Istanbul and Berlin, with the respective titles: Crossing, Round Voyage and Crossroads. What is the meaning of this work? In this essay (which will form part of a forthcoming book on this trilogy, alongside essays by Arthur Danto and Thomas Pogge) Pavlos Eleftheriadis argues that art does not seek to resolve moral dilemmas, such as the dilemma posed by the competing claims of justice made by the illegal immigrants and the neediest of our own society. The power of art is in reminding us (in a way that does not deploy philosophical arguments but is equally or more persuasive) of the profound importance of our moral responsibility towards everyone.

ISBN: 978-3-86930-052-8

P Eleftheriadis, 'The Standing of States in the European Union' in Nicholas Tsagourias (ed), Transnational Constitutionalism: International and European Perspectives (Cambridge University Press 2007)

ISBN: 978-0-521-87204-1

P Eleftheriadis, 'The Rule of Law in Modern Greece' in Kevin Featherstone (ed), Politics and Policy in Greece: The Challenge of Modernisation (Routledge, London 2006)

P Eleftheriadis, 'The Future of Environmental Rights in the European Union ' in Philip Alston (ed), The European Union and Human Rights (Oxford University Press 1999)

Journal Article (39)

P Eleftheriadis, 'Rights in the Balance' (2022) Ius Cogens

P Eleftheriadis, 'Natural Reason and the Ethical Foundations of European Law ' (2021) 2 Revue Européenne du Droit

Most defences of the European Union are consequentialist. They say that for this or that reason the EU serves interests in prosperity or security. The most common attack on the European Union, however, is not consequentialist but based on a constitutional theory of ‘popular sovereignty’. If you believe that popular sovereignty is the ground of a constitutional order, you may find the European Union’s claims to have a say on domestic government questionable. This criticism is very effective because political institutions are normally justified on the basis of ideas of right and wrong, not on their potential consequences. Nevertheless, the ‘popular sovereignty’ argument against the EU is the result of a serious misconception about the nature of constitutions. I sketch here an alternative argument, which explains the legitimacy of transnational institutions and the European Union on the basis of constitutional justice and equal citizenship. The argument continues a long – and in my view fruitful – tradition of legal scholarship, which defends the constitution and the ideal of the rule of law not merely on the value of procedures but also on the basis of ‘natural reason’.

P Eleftheriadis, 'Corrective Justice Among States' (2020) 2 Ius Cogens 7

DOI: 10.1007/s42439-019-00013-x

The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states and in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes, but only fairness in the risks and opportunities undertaken by the parties to any cooperative agreement. Corrective justice requires redress in cases of loss caused by unfairness. An important illustration of corrective justice at work is the Eurozone’s response to the financial crisis. The assistance offered to the states most burdened by financial turmoil can be best interpreted not as an attempt to arrive at fair shares, but as an attempt to remedy the losses unfairly caused to some states by the mistakes made by all of them, when designing the Eurozone’s architecture.

ISBN: ISSN: 2524-3977

P Eleftheriadis, 'In Defence of Constitutional Law' (2018) Modern Law Review 154

P Eleftheriadis, 'Two Doctrines of the Unwritten Constitution' (2017) 13 European Constitutional Law Review 525

DOI: https://doi.org/10.1017/S1574019617000190

Abstract -The Gina Miller judgment of the United Kingdom Supreme Court will be famous for its protection of the rule of law against an overreaching executive. But it should also be remembered for affirming the systematic nature of the British unwritten constitution. The Supreme Court rejected the older theory of the constitution, on which some of the government’s submissions relied, according to which the British constitution is based on the political fact of parliamentary sovereignty (or an equivalent ‘rule of recognition’) and is for that reason different from that of all other states. This was the view outlined by A. V. Dicey and endorsed by the British legal community for almost a century. The Supreme Court majority (and it is possible that the minority does too) relies on a different theory of the constitution, widely described as the ‘common law’ theory, which is a better fit with constitutional history. For the majority, the UK’s constitution is higher law made by the conscious decisions of a legislature like all other law. Joining the EU was a constitutional change brought about by parliament. For this reason withdrawal from the EU and its precise terms must also be decided by an act parliament. The Supreme Court considers the unwritten constitution to be a system of principles of the rule of law, whose origins lie not in a fact of sovereignty (or in the identity of the underlying ‘political community’) but in the legal transformation of the United Kingdom three centuries ago by way of the Bill of Rights 1688, the Act of Union 1707 and other constitutional statutes that created the higher law of the constitution.

ISBN: 1744-5515

P Eleftheriadis, 'Constitutional Illegitimacy over Brexit' (2017) 88 Political Quarterly 183

Members and supporters of the British government say that the only constitutionally legitimate course of action over Brexit after the referendum is to press ahead with withdrawal from the European Union, even if that would entail the complete severance of all ties (which we normally call ‘hard Brexit’). A more sophisticated view of the constitution, however, shows that these more or less populist arguments are false. As the Supreme Court confirmed in the recent Gina Miller judgment, the constitution did not change with the June referendum. Parliament is still supreme and determines both ordinary legislation and constitutional change. In fact, if one examines closely the claim that the referendum entails hard Brexit, it becomes obvious that this claim is false as well. The referendum opened the door for one among four different possibilities. Which Brexit option—if any—the United Kingdom should take is a matter for Parliament now to decide, following the normal processes of democratic deliberation and representation.

P Eleftheriadis, 'The Coming Constitutional Instability ' [2017] Public Law 347

P Eleftheriadis, 'Power and Principle in Constitutional Law' (2016) 45 Netherlands Journal of Legal Philosophy

DOI: 10.5553/NJLP/.000052

The whole of law, public and private, assumes a particular ordering of social life which presupposes the distinction between higher and ordinary law, in that it subjects all of official action of law-making, administration and adjudication, to a general framework of institutions at the service of equal rights. These self-embracing constitutional institutions create the conditions for political legitimacy. The constitution does not seek to create a morally perfect society. Constitutional law aims to construct legitimate institutions under which we could live side by side in spite of our disagreements and in spite of our mutual suspicion. Constitutional law is therefore invested with a very distinct moral purpose: the construction of an effective and legitimate scheme of social co-operation that enables us to live side by side as free and equal. Power alone cannot achieve this task. In this sense, just like moral reasoning, legal reasoning needs no foundations. It is continuous with practical reason. The constitution is a practical judgment, defended and justified like all others.

P Eleftheriadis, 'Legality and Reciprocity: A Discussion of Lon Fullers The Morality of Law' (2014) 9 Jerusalem Review of Legal Studies 1

P Eleftheriadis, 'Misrule of the Few: How the Oligarchs Ruined Greece' (2014) Foreign Affairs

P Eleftheriadis, 'The Content of European Citizenship' (2014) 15 German Law Journal 777

Many European Union law scholars, commentators and politicians consider the creation of European citizenship by the Treaty of Maastricht an important landmark in the process towards ever closer union. By marking a special relationship with the Union itself, citizenship epitomizes the growing maturity of the Union as a political community and not merely an economic project of a single market. Citizenship introduces the first elements of a political, social, and emotional bond between the peoples of Europe and their new Union. Nonetheless, the content of European citizenship remains a puzzle. The rights it grants are very different to those promised by states. When looked at in detail, it fails to match many of the most central elements of citizenship.

ISBN: ISSN: 2071-8322

P Eleftheriadis, 'Descriptive Jurisprudence' (2012) 5 Problema 117

P Eleftheriadis, 'The Euro and the German Courts' (2012) 128 Law Quarterly Review 216

This note discusses the judgment of the German Constitutional Court of 9 September 2011, according to which the Euro Bailout agreements of 2010-2011 may be unconstitutional, if they encroach on the 'Budgetary Sovereignty' of the German People.

P Eleftheriadis, 'A Right to Health Care' (2012) 40 Journal of Law, Medicine and Ethics 268

ISBN: 1073-1105

P Eleftheriadis, 'Austin and the Electors' (2011) 24 Canadian Journal of Law and Jurisprudence 441

P Eleftheriadis, Kalypso Nicolaidis and J. H. H. Weiler, 'Foreword: the changing landscape of European constitutionalism' (2011) 9 International Journal of Constitutional Law 673

P Eleftheriadis, 'Planning Agreements as Public Contracts Under the EU Procurement Rules' (2011) 20 Public Procurement Law Review 43

P Eleftheriadis, 'The Moral Distinctiveness of the European Union' (2011) 9 International Journal of Constitutional Law 695

DOI: https://doi.org/10.1093/icon/mor046

P Eleftheriadis, 'Human Rights as Legal Rights' (2010) 1 Transnational Legal Theory 371

P Eleftheriadis, 'On Rights and Responsibilities' [2010] Public Law 31

The UK Governments Green Paper Rights and Responsibilities: Developing our Constitutional Framework, outlines a new proposal for a British Bill of Rights and Responsibilities, which may replace the Human Rights Act as the main constitutional statement of human rights in the United Kingdom. The Green Paper does not address squarely the role that rights play in protecting liberty. It does not deal with the modern literature on justice, liberty and democracy. The failures are surprising, given the significance of what is being proposed. The experience of modern constitutional law teaches us that we need strong and independent judges and clear public laws, if rights are to be effective. The Green Paper fails to do justice to this long tradition. By making our rights conditional on someones (and mainly the governments) view of our own virtue, the governments proposal, at least as it stands today, threatens to undermine some of the most central safeguards of liberty.

P Eleftheriadis, 'Pluralism and Integrity' (2010) Ratio Juris 365

One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This essay argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly endorsing monism. The coherence of European legal reasoning will be best preserved, if we consider that both the national legal order and the international (or European) such order endorse a sophisticated view of their own limits.

ISBN: 0952-1917

P Eleftheriadis, 'The Law of Laws' (2010) 1 Transnational Legal Theory 597

P Eleftheriadis, 'The Structure of European Union Law' (2010) 12 Cambridge Yearbook of European Legal Studies 121

P Eleftheriadis, 'Law and Sovereignty' (2010) 29 Law and Philosophy 535

DOI: https://doi.org/10.1007/s10982-010-9077-7

How is it possible that the idea of sovereignty still features in law and legal philosophy? Sovereignty is normally taken to refer to absolute power. Yet modern law assumes that power is exercised by officials constrained by legal rules and the rule of law. This essay argues that a closer look at sovereignty and law shows that the first impression is correct: law and sovereignty are mutually exclusive. Philosophically speaking, sovereignty is and has always been incompatible with the rule of law and with constitutional law itself. Sovereignty and constitutional government are mutually exclusive.

ISBN: 0167-5249

P Eleftheriadis, 'Parliamentary Sovereignty and the Constitution' (2009) Canadian Journal of Law and Jurisprudence

P Eleftheriadis, 'The Universality of Rights' (2009) Indian Journal of Constitutional Law

This essay argues that the universality claim is a claim concerning two different domains: first, the domain of the political and, second, the domain of foreign policy. The domain of the political gives us a theory of political rights as we find them in Rawls' Political Liberalism. The domain of foreign policy gives us a theory of human rights as we find them in Rawls' Law of Peoples. Both are distinct from a third domain, that of the moral relations of persons, where rights also are seen to have a bearing. We have therefore political rights, human rights, and moral rights. Only the first two enjoy universality. The distinction between the moral, the political and the international domains is crucial to the success of the claim to universality.

P Eleftheriadis, 'Environmental Rights in the EC Legal Order' (2007) 27 Yearbook of European Law

P Eleftheriadis, 'The Idea of a European Constitution' (2007) 27(1) Oxford Journal of Legal Studies 1

DOI: 10.1093/ojls/gql022

ISBN: 1464-3820

P Eleftheriadis, 'Constitutional Reform and the Rule of Law in Greece' (2005) 28 West European Politics 317

DOI: https://doi.org/10.1080/01402380500059777

A critical analysis of the last ten years of constitutional developments in Greece

ISBN: 0140-2382

P Eleftheriadis, 'Cosmopolitan Law' (2003) 9(2) European Law Journal 241

DOI: 10.1111/1468-0386.00177

ISBN: 1468-0386

P Eleftheriadis and Nicos Alivizatos, 'The Greek Constitutional Amendment of 2001' (2002) 7 South European Society and Poiltics 63

DOI: https://doi.org/10.1080/714004969

P Eleftheriadis, 'The European Constitution and Cosmopolitan Ideals' (2001) 7 The Columbia Journal of European Law 21

ISBN: 1076-6715

P Eleftheriadis, 'Begging the Constitutional Question' (1998) 36 Journal of Common Market Studies 255

DOI: https://doi.org/10.1111/1468-5965.00109

P Eleftheriadis, 'Political Romanticism in Modern Greece' (1998) 17 Journal of Modern Greek Studies 41

P Eleftheriadis, 'The Direct Effect of Community Law' (1997) 16 Yearbook of European Law 205

DOI: https://doi.org/10.1093/yel/16.1.205

The Direct Effect of Community Law: Conceptual Issues 16 Yearbook of European Law (1996) 205-221.

P Eleftheriadis, 'Aspects of European Constitutionalism' (1996) 21 European Law Review 32

P Eleftheriadis, 'The Analysis of Property Rights' (1996) Oxford Journal of Legal Studies

DOI: https://doi.org/10.1093/ojls/16.1.31

P Eleftheriadis, 'Unfreedom in a Laissez Faire State' (1994) 80 Archiv für Rechts- und Sozialphilosophie 168

DOI: https://www.jstor.org/stable/23680545

P Eleftheriadis, 'Freedom as a Fact ' (1993) 56 Modern Law Review 897

DOI: https://www.jstor.org/stable/1096800

Internet Publication (18)

P Eleftheriadis, 'Does the Environment Bill ‘enshrine’ environmental principles in English law?' (2021) FTB Environmental Law Blog, 16.06.2021

P Eleftheriadis, 'Eleven Types of post-Brexit EU Law ' (2021) Oxford Business Law Blog

The United Kingdom and the European Union agreed on Christmas Eve a new Trade and Cooperation Agreement. This treaty has replaced the rules of the single market in the UK (with the exception of Northern Ireland and Gibraltar). It is, however, only one part of EU law in the United Kingdom. EU law in the UK is now a matter of a multiple and overlapping legal instruments. Post-Brexit legal arrangements are very complex, perhaps surprisingly so. Although it is not possible to set out these matters here in detail, it would perhaps be worth listing the eleven types of EU law operating in the United Kingdom after Brexit

P Eleftheriadis, 'The Government's Radical Theory of the Constitution' (2021) Oxford Human Rights Hub Blog

In its response to the Independent Review of Administrative Law, the Government has set out a theory of the constitution that animates its case for reform and informs its position that the courts are illegitimately interfering with the powers of the Executive. It is not a conservative view. It is strikingly radical. The government’s position is, in effect, that parliamentary sovereignty was largely fixed by the Victorian constitution as described by Dicey. Parliament is unconditionally dominant and defines the rule of law as well as any other constitutional principle.

P Eleftheriadis, 'Germany's Failing Court' (2020) Verfassungsblog

P Eleftheriadis, 'The German Constitutional Court’s Weiss judgment is a Failure of German Constitutionalism' (2020) 116 ELIAMEP Policy Brief

In this paper Prof. Pavlos Eleftheriadis offers a first reaction to the judgment of the German Federal Constitutional Court in Weiss regarding the ECB’s bond buying programme. He argues that the judgment is an unprecedented revolt against the law of the European Union. • The judgment of the German Federal Constitutional Court in Weiss is an unprecedented revolt against the shared law of the European Monetary Union • The Court has departed from its prior case law and especially the well-established precedents in Lisbon (2009) and Honeywell (2010) which explained how a democratic constitution is open to European integration • The Court’s arguments seem to ignore the clear constitutional obligation created by Article 23 of the German Basic Law to comply with EU law in all cases, except when there are very serious constitutional reasons not to do so. • The Court promotes an unusual theory of the ‘constitutional identity’ of Germany as a matter of the continuing ‘popular sovereignty’ of the German people, which according to the Court can only be expressed through the present Bundestag and – it appears – cannot be delegated, shared or exercised in common with other nations. • The Court’s statist theories, which have no imitators in other European courts, place it now well outside the European mainstream. • The Court’s doctrines create a potential constitutional crisis in Germany, since they antagonise the clear democratic choice of the German people to remain a member of the Eurozone, on the basis of novel doctrines about identity, democracy and popular sovereignty

P Eleftheriadis, 'Solidarity in the Eurozone' (2019) Bank of Greece Working Papers Series

Proposals for Eurozone reform aim to complete its institutional architecture by securing stability without creating moral hazard. Such policy arguments inevitably rely, however, on implicit assumptions about justice, or on what is owed to whom. A common assumption is that member states are solely responsible for what happens to them. This paper, written from the point of view of public law and legal theory, asks if this assumption is correct. The relevant idea is often considered to be that of solidarity. Yet, solidarity is a puzzling concept. Although it is mentioned in the EU treaties, it does not appear to create any clear duties of mutual assistance. Many prominent legal theorists argue that solidarity will only become relevant in the future, when new European institutions bring citizens together under a single Europe-wide political community. This paper argues, however, that these arguments are misleading. They are at least incomplete in that they miss the key role played by corrective justice. Unlike distributive justice, which applies within states but not among states, corrective justice applies to cooperative arrangements creating interdependence. Corrective justice creates a principle of redress, which requires that those who are unfairly burdened by an agreement should be compensated by those who caused the unfairness. Any state that was unfairly burdened by the Eurozone’s flawed architecture, may thus have a claim of redress for the losses it incurred as a result of the unfairness. It follows that the programmes of financial assistance were not merely actions of self-preservation or prudence by the Eurozone. They were also manifestations of an existing European principle of solidarity based on corrective justice

ISBN: ISSN 1109-6691

P Eleftheriadis, 'How to Make a Transitional Brexit Arrangement' (2017) Oxford Business Law Blog

P Eleftheriadis, 'The Illegitimacy of Brexit' (2017) www.opendemocracy.net

P Eleftheriadis, 'The Systematic Constitution' (2017) United Kingdom Constitutional Law Blog

DOI: https://ukconstitutionallaw.org/2017/01/30/pavlos-eleftheriadis-the-systematic-constitution/

P Eleftheriadis, 'A New Referendum is a Constitutional Requirement' (2016) Oxford Business Law Blog

P Eleftheriadis, 'How Brexit Will Fail' (2016) Oxford Business Law Blog

DOI: https://www.law.ox.ac.uk/business-law-blog/blog/2016/10/how-brexit-will-fail

P Eleftheriadis, 'International Institutions and Legitimacy' (2016) 2016 EUI Working Papers Claudio Corradetti and Giovanni Sartor (eds.), Global Constitutionalism Without Global Democracy (?), EUI Working Papers 21/2016, p. 79-93

P Eleftheriadis, J. Armour, L. Enriques and R Mooney, 'Legal Aspects of Withdrawal from the EU: A Briefing Note' (2016) 2016 Oxford Legal Studies Research Papers Oxford Legal Studies Research Papers

P Eleftheriadis, 'The Proposed New Legal Settlement of the UK with the EU' (2016) United Kingdom Constitutional Law Blog

P Eleftheriadis, 'The United Kingdom and the Eurozone after the Referendum' (2016) Oxford Legal Studies Research Paper 36/2016

P Eleftheriadis, 'The Unfair Eurozone' (2015) verfassungsblog.de

P Eleftheriadis, 'Human Rights for Liberals' (2010) 3 Global Justice: Theory, Practice, Rhetoric 42

James Griffins rich and elegant study, On Human Rights (Oxford, 2008), is a superbly accomplished book. Its range is impressive. It offers a discussion of the general status of values, a general theory of rights, concrete accounts of the right to welfare, the right to privacy, the right to life, the link with democracy and the idea of group rights, among other things. At every stage we are treated to a clear, rigorous and elegant discussion full of broad learning and penetrating judgment, which readers of Griffins earlier books have perhaps learned to expect. Yet, the view of human rights that Griffin defends is strangely narrow and unfamiliar in that it is not connected to any political or legal framework.

ISBN: ISSN: 1835-6842

P Eleftheriadis, 'Constitution or Treaty?' (2004) The Federal Trust Online Paper 12/04 1

A discussion of the Draft EU Constitution

Book (3)

P Eleftheriadis, A Union of Peoples: Europe as a Community of Principle (Oxford University Press 2020)

Many political and legal philosophers compare the EU to a federal union and believe its basic laws should be subject to the standards of constitutional law, and thus find it lacking or incomplete. This book proposes a rival theory: that the substance of EU law is not constitutional, but international, and provides a close examination of the treaties and the precedents of the European courts to explore this concept further. Just like international law, EU law applies primarily to the relations between member states, who have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this 'internationalist' view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, freely organizing their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness.

ISBN: 9780198854173

P Eleftheriadis, Legal Rights (Oxford University Press 2008)

ISBN: 978-0-19-954528-5

P Eleftheriadis, Constitutionalism and Political Values: The Normative Presuppositions of Constitutional Law [In Greek] (Sakkoulas, Athens 1999)

Review (7)

P Eleftheriadis, 'Book Review: EU Legal Acts ' (2020) Common Market Law Review [Review]

P Eleftheriadis, 'Losing to the European Union: A Review of Yanis Varoufakis, Adults in the Room ' (2017) Verfassungsblog.de [Review]

DOI: https://dx.doi.org/10.17176/20171114-094539

P Eleftheriadis, 'The Problem with Greece (and with Europe)' (2015) 86 Political Quarterly 177 [Review]

P Eleftheriadis, 'Book Review of Philosophy and Resistance in the Crisis' (2013) Times Hihger Education Supplement [Review]

P Eleftheriadis, 'Not Quite Lawless' (2006) 77 Political Quarterly 294 [Review]

P Eleftheriadis, 'Book Review: Governing With Judges by Alec Stone Sweet' (2001) 72 Political Quarterly 402 [Review]

P Eleftheriadis, 'Book Review: Social Rights Under the Constitution, by C. Fabre' (2001) 72 Political Quarterly 133 [Review]

Other (4)

P Eleftheriadis, 'A new era of climate change reality - developing a planning system - An Interview with LexisPSL' (2017) LexisPSL Environment

P Eleftheriadis, 'Repealing EU Law: The Great Puzzle' (2017) Solicitors Journal

P Eleftheriadis, 'Introduction: On Reading Law as a Moral Idea' (2010) 1 Jurisprudence

P Eleftheriadis, 'After Aarhus' (2006) European Advocate 10

Case Note (4)

P Eleftheriadis, 'The Court of Appeal clears Newick Neighbourhood Plan in a wide-ranging judgement' (2017) Up Front - Planning Aid e-bulletin [Case Note]

P Eleftheriadis, 'The Elegant Way of the Constitution' (2017) Verfassungsblog.de [Case Note]

P Eleftheriadis, ''High Speed Constitutional Reconstruction'' (2014) Solicitors Journal [Case Note]

The HS2 ruling will restart debates about the fundamental principles of public law. The hierarchy between deeper constitutional principles and ordinary laws is now part of the constitution.

P Eleftheriadis, 'Paradoxes of EU Citizenship' (2012) 156 Solicitors Journal [Case Note]