Page:ELO 1(1), 6–25. European public law after empires.pdf/5

10   Signe Rehling Larsen international law. Within the international legal community, states are sovereign and equal. By introducing the principles of supremacy and direct effect, the argument goes, EU law, and especially the case law of the European Court of Justice (ECJ), has introduced a legal revolution that has taken EU law beyond the realm of ‘normal’ international law. The EU rather constitutes a new legal order that eludes traditional concepts of international law. The EU has led to an erosion of sovereignty that scholars look on either with grim concern as an undemocratic force or else as a promise for a new form of cosmopolitanism that ought to be replicated all over the world.

There is no doubt that EU law is distinct from the general workings of international law and arguing otherwise remains a minority position within EU law scholarship for good reasons. Nevertheless, the comparison made in the literature tends to lack historical depth, and for that reason it misses the real significance of EU law. This is because the narrative of the EU’s sui generis nature through the comparison with international law tends to ignore the historical development of the European public law order, including ‘European’ international law, as well as the role played by European empires within it. The ‘ordinary’ international legal order that EU law is compared to tends to be a universal international legal order where political communities, as a rule, are recognised as sovereign states. In today’s world, where more or less the entire globe is parcelled into nation-states, the EU appears as an exception and a mystery; somehow ‘more’ than an international organisation yet ‘less’ than a new sovereign state.

Yet this global legal order is, in historical terms, recent. For most of modernity, European jurists would have found it absurd to think of political communities outside Europe in terms of sovereignty. Sovereignty only pertained to the world of ‘civilised’, that is, ‘European’ states. This view continued in some form until the 1960s, when non-Western political communities at large were included in the family of sovereign nations as part of decolonisation. The ‘universal’