in: J. Neyer, A. Wiener (eds.), Political Theory of the European Union (OUP 2011)
There is basic disagreement about how European Union Law fits into the World of Public Law. When EU Law conflicts with UN Law or the constitutional law of Member States, there remains a great deal of confusion about whether and how courts should subject the law of the larger community to review under constitutional standards. The article argues that there are three competing conceptions of public law underlying this disagreement as it is reflected in major courts decisions by the ECJ and Member States courts, that are referred to as Democratic Statism, Legal Monism and Constitutionalism respectively. The article describes and analyzes these three conceptions and their implications as they play out in major court decisions in the European Union. Ultimately the article argues that only the constitutionalist conception provides a jurisprudentially and morally plausible account of both cosmopolitan and pluralist practices that characterizes the structure of European constitutional practice.
Date of Authorship for this Version
Kumm, Mattias, "How does European Union Law Fit into the World of Public Law? Costa, Kadi and Three Conceptions of Public Law" (2011). New York University Public Law and Legal Theory Working Papers. Paper 262.