United they diverge? From conflicts of law to constitutional theory? On Christian Joerges’ theory

This working paper offers a reconstruction and critical analysis of Joerges’ conflicts theory of European Union law. It is claimed that the theory of European conflicts is structured around three key premises: first, that there are functional and normative reasons to transcend the autarchic national constitutional state; second, that the public philosophy of European constitutional law should operationalise the regulatory ideal of unity in diversity, and that this is better done by having resort to Currie’s democratic theory of conflicts of law; and third, that any European constitutional theory should be ‘grounded’ on the empirical analysis and resolution of specific supranational conflicts.

This leads to a theory sensitive to the institutional implications of European integration (to Europeanisation processes of national institutions as an alternative to the European superstate, in particular through mutual recognition of legal standards and through the production of common norms in decentralized structures of which comitology is the paradigmatic example) but deeply interested in the specific problématique of constitutional and infra-constitutional European legal practice.

However, the paper also finds that the theory of European conflicts, first, remains incomplete as a constitutional theory, something which comes a long way to explain its downplaying the genuinely federal dimension of European integration; second, fails to provide a satisfactory account of the legitimacy foundations of Community law (as it does not engage either with constitutional beginnings nor with political constitutional transformation); and third, underestimates the structural implications of the combination of the doctrines of primacy, direct effect and mutual recognition, in particular, the resulting structural bias against redistributive politics. All these three factors lead to lack of full attention to the normative and functional sources of stability of European integration and European Union law.