Constitutionalism without principle: Article 2 TEU and the doctrinal construction of EU values

Abstract Half a century ago, Martin Shapiro discovered that European constitutional scholarship was stuck at a stage of ‘constitutional law without politics’, presenting the EU ‘as a juristic idea; the written constitution as a sacred text; the professional commentary as a legal truth; the case law as the inevitable working out of the … constitutional text; and the constitutional court as the disembodied voice of right reason’. Recent efforts to doctrinally construct the values in Article 2 TEU show that the mistakes identified by Shapiro persist to this day. This article examines the proposals for constructing Article 2 TEU by Armin von Bogdandy and Dimitri Spieker, and offers three criticisms: First, their doctrinal constructivism is ill-suited to constitutional reasoning. Second, their reasoning has evolved in a way that their work has become self-contradictory. Third and most importantly, especially due to the evolution of their thinking, their scholarship amounts to constitutionalism without principle. Not only does their work lack consistent principled foundations, it also neglects the principled choices underlying EU constitutional law. Moreover, as they do not maintain any critical distance to the CJEU, their work does not offer a principled basis for evaluating its case law. Finally, and most critically, the principles informing their arguments produce an increasingly undemocratic and unconstitutional view of EU law. To address these deficits, I revisit the call for a more contextualised study of European law made by its earliest proponents four decades ago, and demonstrate its continued relevance. Rather than pursuing institution building, EU constitutional scholarship should examine and critically interrogate the socio-political choices underlying the evolution of EU constitutional law.