Signe Larsen, The Constitutional Theory of the Federation and the European Union (OUP 2021)

AuthorAlan Eustace
PositionFellow by Special Election and Lecturer in Law, Magdalen College, University of Oxford; PhD candidate, School of Law, Trinity College Dublin
Pages114-120
IRISH JUDICIAL STUDIES JOURNAL
114
[2022] Irish Judicial Studies Journal Vol 6(2)
114
BOOK REVIEW
Signe Larsen, The Constitutional Theory of the Federation
and the European Union (OUP 2021), ISBN: 9780198859260
Author: Alan Eustace, Fellow by Special Election and Lecturer in Law, Magdalen College, University of
Oxford; PhD candidate, School of Law, Trinity College Dublin.
1
Generations of undergraduate law students (including my own, if they have been listening in
class) have absorbed the message that the European Union and its legal system are sui generis
though based in international treaties, it is something more than an international
organisation, something less than a ‘super-state’.
2
In her book The Constitutional Theory of the
Federation and the European Union,
3
Signe Larsen exposes this as an intellectual cop-out, rooted
in a ‘flawed statist understanding’,
4
that overlooks both historical evidence and philosophical
discussion of alternative models of political association. She argues the EU is the sole
remaining example of form of polity that has several historical antecedents stretching back
over nearly a millennium of Western history namely the federation or ‘federal union’. This
is not, Larsen is at pains to point out, the same as a federal state. The latter is a much more
recent development, which (as will be discussed below) occasionally arises out of the
transformation of a federation into a state. Larsen posits the federation alongside the state
and the empire as one of the ‘political forms of modernity’,
5
but one that is overlooked not
only because there have been so few of them, but because the state ‘is treated as the universal
or essential form of political association’.
6
Larsen defines the federation as ‘a permanent union of two or more states that rests on a
free agreement of all Member States with the common goal of self-preservation. This
agreement politically changes the constitutional status of the Member States in relation to
their common aim.’
7
This change may not necessarily be visible in positive constitutional law,
but exists as a political fact.
8
The agreement at the heart of the federation is, in the words of
Jacques Chirac, ‘Legally a treaty, but politically a constitution’.
9
It at once transforms the
Member States and gives birth to a new political entity, the federation itself. Integration
affects Member States in multifarious and profound ways, some positive and some negative;
but from the perspective of each state, there is a clear rationale and logic to integration. As
will be explored below, this ultimately boils down to the desire to preserve the ‘political
1
In the interests of full disclosure, Signe Larsen is a colleague of mine at Magdalen Coll ege. The contents of this review have not
been discussed between us.
2
For an example of the prevalence of this framing, see generally, Catharine Barnard and Steve Peers (eds),
European Union Law (3rd edn, Oxford University Press 2020) 4, and more specifically, Bruno De Witte, ‘EU law:
is it international law?’ in Catharine Barnard and Steve Peers (eds), European Union Law (3rd edn, Oxford
University Press 2020) ch 7.
3
Hereafter ‘Federation’.
4
Federation 3 (internal quotation marks omitted).
5
ibid 1.
6
ibid 2.
7
ibid 19.
8
ibid 21 ff.
9
ibid 23.

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