The Concept of EU Law: A Realist Reappraisal

Abstract

This Article argues that the classic “what is law” question deserves more attention in EU legal studies. First, it shows that questions about the nature and concept of law are of great practical relevance for EU law. Second, the Article endorses a distinctively realist outlook on EU law. This analysis concludes that a realist(ic) concept of EU law cannot be distilled from legal realism as a theory of adjudication. What is needed instead is a theory of law that can account for the social reality of EU law by weaving together law’s ideational and material dimensions. From the realist perspective, EU law is neither autonomous nor singular. This inquiry into the nature of EU law illustrates why different variants of legal and constitutional pluralism and inter-legality provide insufficient tools for theorizing EU law. Moreover, it challenges the EU’s current “politics of legality” and problematizes the law-power relationship in EU law, depicting the concept of law as key to the EU’s prolonged authority crisis.