The Idea of a European Constitution

Any abstract account of a field of law must make generalizationsthat are both faithful to the legal materials and appropriateto the subject matter's aims. The uniqueness and fluidity ofthe European Union's institutions makes such generalizationsvery difficult. A common theoretical approach to EU law (onethat is often relied upon by the Court of Justice, the Parliamentand the Commission) is to borrow directly from the theory ofdomestic constitutional law. The most recent manifestation ofthis tendency is the draft Treaty on the European Constitution,which includes many of the symbolic features of a domestic constitutionalorder. But the European Union is not a state and the constitutionalanalogy is in many ways problematic. In this article I defendthe view that a more complex theory is more appropriate to theunique combination of ordinary politics with diplomatic conferencesthat constitutes the European Union. The key to these institutionsis, in my view, a Kantian international ideal of liberal peace.The foundational constitutional principles of the EU, principlesthat both fit the current legal framework and offer its mostattractive interpretation, require the qualified autonomy ofmember states in a union of republics that create collectiveinstitutions for the purposes of liberal peace.