Jurisprudential Dilemmas of European Law

Abstract

Making a first sketch of philosophical issues arising from European Community law I want to present a series of more or less obvious, and more or less interrelated dilemmas, or even ‘double binds’. (i) Deepening the community becomes incompatible with widening membership. (ii) National states seem both necessary for and obstructive in articulating transnational problems. (iii) The more democracy is needed as a warrant for the public exercise of political power in Europe, the more the very concept of democracy on a European scale evades understanding. (iv) European unity presupposes a unifying rule of law, while member states have radically different conceptions of this principle. (v) Even the very core of European integration, the common market, is subject to two conflicting and, indeed, incompatible doctrines of competition. In explaining the nature of each dilemma I will try to take my cue from the Maastricht Treaty wherever this seems suitable. Then I will elaborate on the jurisprudential problems involved in it. Finally, each section will be closed by an attempt to state the nature of these problems in philosophical terms.

I want to thank professors Zenon Bankowski and Neil MacCormick for inviting me to Edinburgh and present this paper in the staff seminar of their Centre on 9-2-1995. I am also grateful to all those who engaged in a very stimulating discussion. At a later stage, I profited from the semestrial discussion in the ESRC Seminar on Legal Theory and European Community Law 1995–1997.