Rebekka Byberg – Københavns Universitet

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Rebekka Byberg


Federation through Law? The History of the ‘Constitutional’ Debates of European Public Law, 1950-1993

The founding treaties of the European Community were formally trea­ties of international public law reflecting the conscious choice of the member state governments not to establish a European federation. Nevertheless, a modest dose of latent constitutionality can be found in the texts mainly due to German insist­ence and the discreet input of federally inclined legal experts.

From the 1950s onwards, the supranational in­stitutions and a number of federalist jurists started to discuss the possibili­ty of developing this potential. While these early debates on European pub­lic law as constitutional law made little in-road into national legal academia, they would inform and subsequently legitimize the establishment of a con­stitutional practice by the case law of the European Court of Justice in 1963-64. Eventually the con­stitutional position would become a dominant academic paradigm in European legal studies from the 1980s onwards.

This project will analyse the substance, argu­ment and normative presumptions of the debate on the nature of European law in the emerging academic field of European law from 1950 to 1993. It will map the debate, identify the main protago­nists, detail their biographical and institutional affiliations and explore their political and social networks.

This project will analyse the most prominent European law journals including Common Market Law Review, Europarecht and Revue trimestrielle de droit européen, as well as reports from the conferences in the pan-European organisation for European law, the Fédération internationale pour le droit européen (FIDE). This material provides a representative sample of the discussions in the academic field on the nature of European law. This project will furthermore explore the archives of the European law journals and private archives of the main actors shaping the debate. These archives will enable a mapping of the networks and the social history of the debate.

The project aims to deliver a central and unified source of information on the role of the academic debate and its protagonists in the battle over the constitution­al practice.