Table of Contents: I. Introduction. – II. Legal Traditions and Fundamental Rights. – III. Legal Traditions and National Identity. – IV. Transgression and Response. – V. Legal Traditions ad Authority. – VI. Conclusion.
Abstract: National legal traditions have always played a pivotal role in the shaping of EU law. Nowadays, the respect for national legal traditions, or national constitutional identities is enshrined in Art. 4, para. 2, TEU, the so-called identity clause. Most commentators submit that national constitutional identity refers to certain aspects of the national constitutions which remain unaffected by EU law. This would make the identity clause an answer to the case law of several national constitutional courts. In this case law, constitutional courts have questioned the higher rank of EU law vis-à-vis national constitutions. Yet, this claim contradicts a key doctrine of EU law. According to well-established case law, the EU forms its own, autonomous legal order claiming authority independent of its Member States. In this paper, I will argue that the notion of legal tradition – notwithstanding its value in other respects – cannot be called upon to solve this fundamental question of authority.
Keywords: legal tradition – national identity – European integration – authority – fundamental rights – legal theory.
* Assistant Professor, Vrije Universiteit Amsterdam, firstname.lastname@example.org.