European Law and Natural Reason

Abstract

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’.