Constitutional Choices of EU Migration Law by Anna Kocharov Book presented for the degree of the Doctor of Laws at the European University Institute Constitutions establish communities. This essay explores how a European political community can be advanced through EU constitutional law. It is shown that legitimacy of the Union derives from three conceptions of Peace manifest in EU free movement law, external agreements of the Union and migration law under the AFSJ. The constitutional role of the Union is to ensure Peace by addressing two types of conflict. The first are static conflicts of interests between the national polities in the EU. These are avoided by ensuring reciprocal non-interference between Member States in the Union through deregulation in Union law. The second are dynamic conflicts of ideas about positive liberty held by the peoples of Europe that can be resolved through regulation in a European political space. Here, Union law enables a continuous process of re-negotiating a shared European idea of positive liberty that can be accepted as own by each national polity in the EU. These solutions to the two types of conflicts correspond to the liberal and republican models for Europe. Both are premised on liberty from domination of each national polity from which legitimacy of the Union and the European political space ensue. Substantive law and constitutional theory, analysis of the legislative process and CJEU case law, insights from psychology and philosophy are combined throughout this work to unveil how a stronger Union can be advanced through constitutional law. This work in EU constitutional theory is interdisciplinary and comparative. The
theoretical framework it creates draws on philosophy and psychology,
theories of transnational legal systems, theories of European
integration and constitutionalism. Comparative analysis of substantive
law and case law across three different constitutional areas of Union
law is used to identify and trace the evolution of constitutive
elements of EU legal order. These elements are inserted into the
theoretical framework to construe a holistic constitutional theory of
EU law. The holistic theory of Union law that emerges from from this interdisciplinary and comparative method allows space for both liberal and republican models of legitimation of the Union and its policies. Outline: Intruduction 1. Loyalty in the Constitutional Construction of Europe 2. A Union of Polities 3. A Political Union 4. Conflict in Union Law 5. The Court between Polities and Politics Conclusion |