Solidarity, Heterarchy, and Political Morality
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Solidarity, Heterarchy, and Political Morality Massimo Fichera 1 # The Author(s) 2020
Abstract
This article claims that, despite its ambivalent relationship with the heterarchical paradigm, A Union of Peoples is a truly innovative contribution to the complex debate on the European project, especially in the current troubled climate. Its ability to dismantle the prevailing positivist understanding of the interaction between legal orders and to stand out from the overwhelming and often repetitive literature on the philosophy of EU law should be praised. What is especially noteworthy is the idea of “corrective justice.” This notion explains very well the adoption of financial assistance measures as expression of a new form of solidarity, based on the notion of fair redress for a committed wrong, namely the structural deficiencies detectable in the design of the eurozone. Keywords Constitutional pluralism . Supremacy . Legal positivism . Transnational law . Legal authority
1 The Definition of a (New?) Legal Entity Elaborating a brand-new definition of the European Union (EU) has become a recurrent endeavor in contemporary legal theory. This ought not to surprise the careful and informed reader. The implications of a deep inquiry into the nature of a new legal creature such as the EU—including the question whether this is really a new creature—go beyond the object of that inquiry and concern the very nature of law. Does it still make sense to employ legal concepts and paradigms that were devised in a significantly different socio-historical landscape, largely in the nineteenth and twentieth century? Pavlos Eleftheriadis’ new book, A Union of Peoples, displays the adequate theoretical ambition—given the difficulty of the topic—without losing sight of the practical aspects of a fully fledged philosophy of EU law. He provides a name for such theory: progressive internationalism. The book relies upon two main arguments. The first argument is that, contrary to most approaches—which employ constitutional law tools and
* Massimo Fichera [email protected]
1
Faculty of Law, University of Helsinki, Helsinki, Finland
Jus Cogens
look at the EU as a federation or quasi-federation—the EU should be viewed as a model of international cooperation. In other words, the most appropriate tools to analyze the EU do not belong to constitutional law, but to (public) international law: the EU at the same time enables power sharing and recognizes the equal sovereignty of the member states. A second, related argument that is put forward by Eleftheriadis is that law ought not to be conceptualized as a body of hierarchically ordered rules, grounded in social facts. The correct way of looking at a legal order is, in his view, constructivism or practical theory. This means that a legal order is the result of a form of moral practical reasoning, which is performed on the basis of the principle of the equal treatment of persons as free citizens and has as its object historical decisions and legal materials. Make no mistake: the targe
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