The idea of a European Constitution

Any abstract account of a field of law must make generalizations that are both faithful to the legal materials and appropriate to the subject matter's aims. The uniqueness and fluidity of the European Union's institutions makes such generalizations very difficult. A common theoretical approach to EU law (one that is often relied upon by the Court of Justice, the Parliament and the Commission) is to borrow directly from the theory of domestic constitutional law. The most recent manifestation of this tendency is the draft Treaty on the European Constitution, which includes many of the symbolic features of a domestic constitutional order. But the European Union is not a state and the constitutional analogy is in many ways problematic. In this article I defend the view that a more complex theory is more appropriate to the unique combination of ordinary politics with diplomatic conferences that constitutes the European Union. The key to these institutions is, in my view, a Kantian international ideal of liberal peace. The foundational constitutional principles of the EU, principles that both fit the current legal framework and offer its most attractive interpretation, require the qualified autonomy of member states in a union of republics that create collective institutions for the purposes of liberal peace.