History, System, Principle, Analogy: Four Paradigms Of Legitimacy In European Law

The constitutional dimension of European Union law promises—in its most ambitious forms—reflexive structures of post-national democratic community. But this ambition poses profound philosophical challenges for how we think about the legitimacy of European judiciaries—the relation between legal decision-making and the ideal of post-national self-authorship. European constitutional law not only coordinates new forms of public power, but its jurisprudence also normatively justifies (or fails to justify) that power in what must be similarly reflexive discourses of legitimation.

This article argues that theorists of European law have thus far paid too little attention to this legitimation and, specifically, to the thicker socio-cultural registers through which it occurs. They have thereby settled with an overly narrow legalistic or procedural view of constitutionalism, which restricts analysis of the ‘constitutional imaginaries’, or interpretive paradigms, underpinning divergent legitimations of law.

Utilizing a cultural study of law and strands of American constitutional theory, this article develops a framework for just such an analysis. The article’s main aim is to formulate a typology of interpretive paradigms presently at work in European law and to trace their relation to the normative hopes of reflexive constitutionalism. The argument articulates four distinct paradigms in European legal thought, namely those structured by history, system, principle, and analogy. While the former three paradigms comprise the predominant coordinates of contemporary European legal rationality, they also remain unhelpfully tied in crucial respects to the Westphalian sovereigntist mode of legal authority. Only the last paradigm—grounded in analogical reasoning—offers the seldom-seen but essential bearing, I argue, of transformative post-national constitutional law. As claims made analogically, concerns become interdependent and one’s autonomy becomes tied to the interpretations of others. Analogical thinking thereby offers unexplored resources for reviving post-sovereign, non-hierarchical practices of political life.