Justice, Legitimacy and the Authority of Legislation within the European Union
| Published date | 01 March 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12406 |
| Author | Martijn Brink |
| Date | 01 March 2019 |
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Justice, Legitimacy and the Authority of Legislation
within the European Union
Martijn van den Brink∗
What are we to makeof the author ity of legislation within the EU? EU lawyers have questioned
the significance of legislative decision-making within the EU.This article challenges these views
and argues that the EU legislature must enjoy adequate freedomto shape EU law with the general
interest in mind. Institutional accounts that seek to curtail the authority of legislation tend to
rest upon ‘content-dependent’ conceptions of political legitimacy, according to which the
legitimacy of a decision depends on its moral qualities. Such conceptions overlook reasonable
disagreements on justice and rest upon an overly optimistic (pessimistic) view of the Court (the
legislature). The article argues for a content-independent conception of legitimacy, following
which the benefits of legislative decision-making are more easily understood. The authority of
legislation deserves wider recognition among EU lawyers for reasons of political legitimacy and
because the EU legislature is better positioned to decide in the general interest.
INTRODUCTION
The acts of the European Union legislature are vast in number and scope,
regulating most domains of EU law. This raises the question of what we are to
make of that institution and to what extent we should value its decisions. Some
EU lawyers question the significance of legislative decision-making and find it
unproblematic if the Court of Justice of the European Union (CJEU or Court)
undermines its authority. Francis Jacobs, a former Advocate General (AG)at the
Court, named it the ‘European way’ that ‘many fundamental choices for society
are now made, and probably have to be made, not by the legislature, not by the
executive, but by the courts’.1This position appears indicative of what manyEU
lawyers think of legislatures and legislation. For example, Charlotte O’Brien
has asserted that ‘judicial decisions and intellectual commentary, not legislation,
have transformed conceptions of human rights and democracy’,2even though
there is little empirical evidence that supports this statement.3Going even
further, Floris de Witte has made the argument that the EU must contain
∗Postdoctoral researcher at the Max Planck Society for the Study of Religious and Ethnic Diversity
(Ethics, Law and Politics Department). I am grateful to Claire Kilpatrick, Richard Bellamy, Daniel
Halberstam, Niamh Nic Shuibhne, and the anonymous reviewersfor their valuable comments. I also
wish to thank Oliver Garner, Filipe Brito Bastos, Marcin Baranski, and Davor Petric for comments
on earlier drafts. The usual disclaimer applies.
1F.G.Jacobs,The Sovereignty of Law: The European Way (Cambridge: CUP, 2007) 1.
2 C. O’Brien, ‘I Trade, Therefore I Am: Legal Personhood in the European Union’ (2013) 50
Common Market Law Review 1643, 1680.
3 That lawyers tend to be overly optimistic about what can be and has been realised by judicial
decision-making is something political theorists have emphasised on multiple occasions. R. A.
Dahl, Democracy and Its Critics (New Haven, CT: Yale University Press, 1991); T. Christiano,
‘An Instrumental Argument for a Human Right to Democracy’ (2011) 39 Philosophy & Public
C2019The Author. The Modern Law Review C2019The Modern Law Review Limited. (2019) 82(2) MLR 293–318
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Legislation within the European Union
national legislative processes by re-allocating responsibilities ‘to a different type
of government, whether judicial . . . expert based . . . administrative . . . or
the individual’.4The EU’s course of action, apparently, is to be decided by any
institution but the legislature.
In this article, I offer an alternative view that emphasises the benefits of
legislative decision-making within the European Union. I shall argue that the
EU legislature must enjoy adequate freedom to shape EU law with the general
interest in mind. This argument rests upon an account of legitimate EU politi-
cal institutions which differs from that underlying the more dismissive views on
legislative authority above. Popular among EU lawyers are so-called ‘content-
dependent’ or ‘instrumentalist’ theories of legitimate political author ity. In-
strumentalists believe that we should assess institutions and decision-making
procedures solely for the content and quality of the outcomes they produce.
Their theories of legitimacy are thus content-dependent and conflate legiti-
macy with justice: the legitimacy of political decisions and institutions depends
on the justness and moral qualities of the outcomes realised.5
The EU legislature, it is important to clarify immediately, is negatively
affected by such instrumentalism. If the authority enjoying legitimacy is that
which realises the best substantive outcomes, legislation becomes the baseline,
which we treat as legitimate unless we can conceive of better outcomes. Those
legislative decisions that we like are authoritative, while others are ready for
a second round of debate in court.6I shall demonstrate the shortcomings of
such theories of legitimate author ity and argue for a content-independent
conception of legitimacy, which grounds legitimacy in the fairness of the
decision-making processes used to decide our disputes, not in the quality of the
outcomes produced by the different political institutions. Content-independent
theories of legitimate political institutions weigh in favour of the EU legislature.
In addition, I will argue that the EU legislature is better equipped than the
CJEU to decide the EU’s course of action with the general interest in mind.
The first section below offers three examples of instrumentalism we find
in the literature, to highlight the commonality of instrumental conceptions of
legitimacy, and uncovers the two core assumptions underlying such concep-
tions. These are first, that we can come to a shared understanding of justice and
the common good and, secondly, that the judiciary is more likely to produce
desirable outcomes. The second section establishes that the first assumption is
implausible because it overlooks our reasonable disagreements on justice. The
third section rejects the second assumption, for resting upon an overly opti-
mistic (pessimistic) view of the CJEU (the legislature). I argue in the fourth
section that the EU legislature should enjoy the authority to shape the EU’s
Affairs 142. See also, R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism (Cambridge, Mass: Harvard University Press, 2007).
4 F. de Witte, ‘Sex, Drugs & EU Law: The Recognition of Moral and Ethical Diversity in EU
Law’ (2013) 50 Common Market Law Review 1545, 1554 (footnotes omitted).
5 For a critical discussion of instrumentalism, see T. Christiano, ‘The Authority of Democracy’
(2004) 12 Journal of Political Philosophy 266.
6 For a proponent of continued debate in court, see M. Poiares Maduro, ‘Interpreting European
Law - Judicial Adjudication in a Context of Constitutional Pluralism’ (2008) 1 European Journal
of Legal Studies 11.
294 C2019 The Author.The Moder n LawReview C2019 The Modern Law Review Limited.
(2019) 82(2) MLR 293–318
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