Publication
Constitutionalism without principle: Article 2 TEU and the doctrinal construction of EU values
Martijn van den Brink has published an article in European law Open that argues that the doctrinal construction of EU values, as set out in some of the leading literature on Article 2 TEU, is fundamentally unsound, leading to a form of constitutionalism without principle. In his article, Martijn examines the proposals for constructing Article 2 TEU by Armin von Bogdandy and Dimitri Spieker. He offers three criticisms: First, their doctrinal constructivism is ill-suited to constitutional reasoning. Second, their reasoning has evolved in a way that their work has become self-contradictory. Third and most importantly, their scholarship amounts to constitutionalism without principle.
- Author
- Martijn van den Brink
- Date
- 16 February 2026
- Links
- Constitutionalism without principle: Article 2 TEU and the doctrinal construction of EU values
Half a century ago, Martin Shapiro discovered that European constitutional scholarship was stuck at a stage of ‘constitutional law without politics’, presenting the EU ‘as a juristic idea; the written constitution as a sacred text; the professional commentary as a legal truth; the case law as the inevitable working out of the … constitutional text; and the constitutional court as the disembodied voice of right reason’. In his article, Martijn argues that recent efforts to doctrinally construct the values in Article 2 TEU show that the mistakes identified by Shapiro persist to this day.
The article uses the designation constitutionalism without principle for four reasons. First, by claiming that constitutional law may only be interpreted by legal-doctrinal means, von Bogdandy and Spieker neglect the principled choices underlying its interpretation. Second, in their desire to expand the scope of Article 2 TEU, they have repeatedly betrayed the principles they established in their earlier work, resulting, somewhat ironically, in a principled reading of EU law without consistent principled foundations. Third, by failing to maintain any critical distance from the CJEU, their work does not provide a principled basis upon which to evaluate its case law. Fourth, the principles that by now inform their arguments produce a view of EU law that, as we will see, is increasingly unconstitutional and undemocratic in character.