National Identity and European Integration: The Unbearable Lightness of Legal Tradition

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Abstract

National legal traditions have always played a pivotal role in the shaping of EU law. Nowadays, the respect for national legal traditions, or national constitutional identities is enshrined in Art. 4, para. 2, TEU, the so-called identity clause. Most commentators submit that national constitutional identity refers to certain aspects of the national constitutions which remain unaffected by EU law. This would make the identity clause an answer to the case law of several national constitutional courts. In this case law, constitutional courts have questioned the higher rank of EU law vis-à-vis national constitutions. Yet, this claim contradicts a key doctrine of EU law. According to well-established case law, the EU forms its own, autonomous legal order claiming authority independent of its Member States. In this paper, I will argue that the notion of legal tradition – notwithstanding its value in other respects – cannot be called upon to solve this fundamental question of authority.
Original languageEnglish
Pages (from-to)383-393
Number of pages11
JournalEuropean papers
Volume1
Issue number2
DOIs
Publication statusPublished - 2016

Keywords

  • national identity
  • legal theory
  • legal tradition
  • European integration
  • authority
  • fundamental rights

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