The Theoretical Foundations of EU Law

This chapter investigates the contribution of legal theory in understanding the distinctiveness of law’s role in the EU. It does so by evaluating which theoretical approach, or approaches, generate the best conception of law’s place in a wider political vision of supranational community. Key candidate conceptions are positivism, culturalism, idealism, and pragmatism. For positivism, the focus is on ‘the authorized law’; for culturalism, ‘the appropriate law’; for idealism, ‘the good law’, and for pragmatism, ‘the law that works’. Whereas EU law lacks the direct democratic resources, the common cultural identity, and the plausible claim to universalism to support robust versions of positivism, culturalism, and idealism, its investment in the security and versatility of law in providing positive-sum policy outputs has instead supported a primarily pragmatic vision of law’s legitimacy. The chapter concludes by examining the fragility of excessive dependence on pragmatism in an environment where various crises increasingly undermine even modest levels of secondary reliance on positivist, culturalist, and idealist justifications, and by addressing the possibilities inherent in an alternative proceduralist model of EU law.