A normative assessment of the legal philosophy of the european union using the grundnorm theory of hans kelsen

Abstract

This thesis assesses the normative basis of the law of the European Union according to selected theories of legal and ethical philosophy. Firstly it employs the methodology of legal theorist Hans Kelsen, who envisioned a legal order as a hierarchy of norms with a central norm or Grundnorm at the peak of this hierarchy. Ten such norms are identified within the EU Treaties and related documents, and encompass values such as the ‘promotion of peace’, the ‘rule of law’ and ‘democracy’. However, an examination of the jurisprudential approach of the Court of Justice, which occupies a prominent place in the constitutional law of the EU legal order alongside the Treaties, suggests that the Grundnorm of the EU law is of a functional nature, and is chiefly concerned with the establishment and maintenance of the European Common Market. An assessment of this Grundnorm using the contrasting ethical theories of Kantianism and utilitarianism suggests that the legal philosophy of the European Union is thus consequentially ethical, as the European Common Market brings many benefits, but it is not primarily governed by the protection of deontological values, with these values consistently subordinated to the Common Market Grundnorm. It is then suggested that the functional basis of this Grundnorm will create problems for the ethical legitimacy of the EU legal order in the longer term; it has been constructed in this way by the Court of Justice due to the identity crisis of the Community as caused by the on-going democratic deficit. Thus an ideal Grundnorm for the EU legal system should have a core basis in ethical values, especially those relating to democracy, human rights and the rule of law.