Legitimate Political Rule Without a State? An analysis of Josef H. H. Weiler’s justification of the legitimacy of the European Union qua non-statehood

Contributions in the normative debate on the legitimacy of the EU are frequently based on two premises: The first premise is that the principles of the democratic constitutional state represent the normative ideal of political rule in the nation-state, but cannot justify the legitimacy of the EU. Consequently, it is claimed that there is an urgent need to re-set the standards by which we assess the legitimacy of European integration and of the institutions which guide the process (Majone). This implies a second premise, namely, that the validity of the norms to which our assessment of the legitimacy of political rule refers, could be re-set via an academic consensus. The paper seeks two counter both of these assumptions, which are assumptions about the structure of the interpretive pattern regarding the legitimacy of political rule. It claims to show an internal contradiction in the type of normative justification that aims to overcome a touch of stateness (Shaw/Wiener) by explaining the EU’s legitimacy with its assumed non-statal character. To this aim, it presents a detailed hemeneutical analysis of one example of this type, Joseph H. H. Weiler’s normative justification of the EU. Weiler explains the legitimacy of the EU with its non-statal constitutional architecture embodying a principle of constitutional tolerance. However, the analysis reveals that Weiler’s justification implicitly presupposes certain features for the EU which he has rejected before as essential elements of the ideal of the democratic constitutional state: a legal citizenship, hierarchically superior European law, and the principle of popular sovereignty. The paper concludes that this can be seen as an indicator speaking against the two premises: the principles of the democratic constitutional state seem to make-up a central component of our understanding of legitimate political rule in the nation-state as well as in the context of the EU.