Another Look at Constitutional Pluralism in the European Union

Constitutional pluralism is a theory, or movement, or idea, for some perhaps even an ideal, about the relationship between the legal system of the European Union and those of its Member States. In this paper, Julio Baquero Cruz analyses its assumptions and implications in the light of historical experience and of the consequences it could have for the practice of law in Europe. To do so, constitutional pluralism is compared with the other main positions about that relationship: the national constitutional position and the position of Union law.     

Legal Cultures in the European Union

The introductory part of the essay deals with the notion of legal culture and its categories. Later, the author sets forth the characteristics of the common law and the Roman- German legal cultures, including the legal families within them. He also touches upon the tendencies of the development of the German legal and political culture. With respect to the integration of the legal systems into the EU, the author argues as an advocate of convergence. Both basic legal cultures are being modified as, besides statutory law, judicial law becomes significant in the continental legal systems and statutory law complements case law in the common law systems. As to the integration of the Hungarian legal culture into the EU, the essay points to two principal considerations. On the one hand, when working on making our legal culture "euro-conform", we must not forget about maintaining our own legal culture. On the other hand, the Hungarian legal culture can contribute to the development of the legal system of the EU, e. g. with some of the regulations of our statute on the ethnic minorities. At the end, the author shows that the efficacy of the European law is heavily dependant upon the national legal systems.     

Governing Economic Globalisation: Global Legal Pluralism and European Law

How is globalisation governed? The following article tries to answer this question. Focusing on economic globalisation, it presents the case of the international commodity chain in toys, identifies its various segments or boxes, and then gives examples to illustrate how the chain is governed. The article argues that economic globalisation is governed by the totality of strategically determined, situationally specific, and often episodic conjunctions of a multiplicity of sites throughout the world. These sites include, for example, EU law, United States law, Chinese law, multinational corporation and trade association codes of conduct, international customs conventions, and WTO law. Each of these sites has institutional, normative, and processual characteristics. Though the sites are not isolated from each other, each has its own history, internal dynamics, and distinctive features. Taken together, they represent a new form of global legal pluralism.     

Legal Education,Institutional Skills and European Union Opinions

A cluster of issues in the context of legaleducation shows the importance of legalsemiotics: new forms of citizenship, new ideas on e-education, the recent design ofe-educational programs that focus the featuresof institutional life, the concept of a`learning society' are this cluster's elements.Opinions of European Union Institutions stimulate to conceive modern society in thelight of these issues. It leads to theformulation of a fifth freedom in the Union,(after freedom of persons and goods, servicesand capital) which is the freedom toparticipate in a ``learning society'. Thepractice of that freedom leads to developinge-educational programs for institutionalskills.     

'New Governance' in European Corporate Law Regulation as Transnational Legal Pluralism

The present transformation of European corporate governance regulation mirrors the challenges that have been facing the EU's continuously evolving polity, marked by tensions between centralised integration programmes, on the one hand, and Member State's embedded capitalisms, path-dependencies and rent-seeking, on the other. As longstanding concerns with remaining obstacles to more mobility for workers, services, business entities and capital in recent years are aligned with post-Lisbon commitments to creating the world's leading competitive market, European corporate governance regulation (ECGR) has become exposed to and implicated in a set of highly dynamic regulatory experiments. In this context, 'New Governance' offers itself as both a tentative label and immodest proposal for a more responsive and innovative approach to European law making. The following article assesses the recently emerging regulatory forms in ECGR as illustrations of far-reaching transformations in market governance. The arguable parallels between the EU's regulatory transformation in response to growing legitimacy concerns and the recurring question about whose interests a business corporation is intended to serve, provide the framework for an exploration of current regulatory trajectories in European corporate law that can most adequately be understood as a telling example of transnational legal pluralism.     

Joint Dynamics of Legal and Economic Integration in the European Union

We evaluate the causal linkages between the economic and legal integration process that has characterised the formation of the European Union. Specifically, using the frequency of national references for preliminary rulings sent to the European Court of Justice as a measure of legal integration we investigate its joint dynamics with the expansion of intra-EU trade over the 1960–1998 time period. Our objective is to formally test whether any such linkages exist and the direction within which they have operated.     

法律多元主义及其中国语境：规范多元化

法律多元主义的产生与发展,对各国法治发展的影响不容忽视.当代中国自上而下推行法治,法律规范创制体系以国家制定法为中心,但现代社会中民间法的超强生命力、道德的法律化、法律原则的普遍适用等现象冲击了制定法的中心地位,法律规范的创制体系也由此趋于多元.这种多元主义法律观对当代中国的法治运行具有现实意义.     

Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures

Abstract A remarkable feature of the Union's legal order is the absence of a genuine hierarchy of legal acts—a pre‐established ranking of different types of legal acts in accordance with the democratic legitimacy of their respective authors and adoption procedures, which is used as a means to resolve conflicts among these different types of legal acts. There is however a clear suggestion of such hierarchy in the sequence in which the newly created legal instruments are listed in Article I‐33(1) and in the organisation of the subsequent Articles I‐34 to I‐37 of the European Constitution. In this contribution, the (lost) logic behind the Union's current set of legal instruments is analysed, followed by an examination of the reform of the system of legal instruments carried out in the European Constitution. Lastly, an attempt is made to answer the question as to whether this reform amounts to the establishment of a genuine hierarchy of legal acts in the Union.     

Legal Pluralism and the Adjudication of Internet Disputes

No single entity-academic, corporate, governmental or non-profit-administers the Internet. (American Civil Liberties Union v Reno \[E.D. Pa. 1996] 929 F. Supp. 824, 832) The problems of regulation on the Internet are simply stated. First, it allows novel activities: e-mail, electronic discussion groups, simple transfer or viewing of text, images, sound and video. These activities may fall foul of laws of obscenity or defamation in some or all of the jurisdictions in which it is available. Second, the Internet is a distributed system that straddles geographical and jurisdictional boundaries; the regulation of such activities is likely to fall within two or more national 'legal' jurisdictions. It may therefore be difficult to choose an appropriate jurisdiction. Third, the inevitable need to choose a jurisdiction will mean that the values to be imposed upon the dispute will be the values of that jurisdiction, values that may be different from the values of those involved in the dispute. Much has been written on the first two problems and significant developments have been made in the formulation of principles to be applied to the problem of choosing a jurisdiction. In this paper, I will begin to focus on the third problem, the problem of inappropriate values being imposed upon Internet behaviour. The paper will develop the theme that the need for a single jurisdiction and, in consequence, the need for a single set of values to be imposed upon Internet activities is a fiction born out of centralist systems of western jurisprudence. The paper will review how courts have turned against pluralistic approaches in the past when dealing with clashes in cultural and religious values, particularly the clash in the English courts in the case of Salman Rushdie's 'The Satanic Verses'. Western courts have been dismissive of cultural and religious claims either treating them as 'repugnant' or contrary to public policy, or else questioning the validity of the motives of the applicants. It is evident from recent cases in the US, that judges will use similar techniques to impose their own value values upon Internet activity. The concept of legal pluralism is not recognised within westernised systems of law. The paper will then consider whether a more pluralistic strategy would provide a more satisfactory approach to dealing with such disputes on the Internet: an approach that would enable the resolution of the conflict between different cultural and religious values.     

The Schengen Law: A Challenge for Legal Accountability in the European Union

This article examines challenges for accountability arising from the development of the Schengen law within the framework of the European Union. Building upon the substantive body of research by other authors on general implications of the integration of the Schengen acquis , it focuses on recent developments after the entry into force of the Treaty of Amsterdam and evaluates to what extent the European institutions have so far met the challenges for accountability stemming from the intergovernmental origin of the Schengen law. The article identifies various persisting deficiencies in the areas of transparency, institutional balance and judicial review and proposes specific actions, which should be addressed vigorously by the European institutions.     

法律多元语境下的法律变通的概念界定

语境不同法律变通的概念界定也存在着差异。在法律多元的语境下法律变通就是基于不同文化基础上的法律制度之间的调适和变通。在调适和变通中正式的法律制度可能被变通,作为非正式制度的民族地区的民间习惯法也可能被变通。     

A Non-Essentialist Version of Legal Pluralism

The concept of legal pluralism has been touted by many socio-legal scholars as a key concept in the analysis of law. Yet, after almost twenty years of such claims, there has been little progress in the development of the concept. This article will argue that the underlying cause of this lack progress lies in the fact that promoters of the concept have relied upon function-based, essentialist concepts of law. It will describe the problems generated by such concepts and, following this general analysis, will review the versions of legal pluralism articulated by Boaventura de Sousa Santos and Gunther Teubner. The critique of their versions of legal pluralism will lead into the posing of a non-essentialist alternative which avoids the conceptual problems of prevailing versions of legal pluralism, and provides a better tool for purposes of research and analysis of the relationship between law and society.     

Constitutional Pluralism and the Question of the European Common Good

Constitutional pluralism seems to be one of the most inspiring theories of European constitutionalism. It can account for the multilayered institutional framework of the Union. Therefore, it is a natural candidate for explaining how to track the European public interest. Pluralism may serve as the best methodology for keeping into account and for respecting the multiple perspectives on the common good represented by every institutional layer of the Union. After having examined the theories of two of the most influential authors of constitutional pluralism, Mattias Kumm and Miguel Maduro, this essay tries to show how pluralism might improve its highly potential explanatory and normative force, that is, by including in the institutional picture not only courts but also political institutions. In this way, the constitutional dialogue between the European and the national layers would be enriched, and every European and national voice might have a say in the interactions between institutions, securing a fairer way of tracking the European common good.     

Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.     

Anti-Discrimination Law and the European Union

Netherlands International Law Review -     

The Heterogeneous State and Legal Pluralism in Mozambique

This article analyzes some of the most salient features of the state and the legal system in Mozambique. I propose the concept of the heterogeneous state to highlight the breakdown of the modern equation between the unity of the state, on the one hand, and the unity of its legal and administrative operation, on the other. The centrality of legal pluralism is analyzed in light of an empirical research focused on community courts and traditional authorities. I use the concept of legal hybridization with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilizations or cross-contaminations among them. Special attention is given to the multicultural plurality resulting from the interaction between modern law and traditional law, the latter conceived here as an alternative modernity.     

European Monetary Union: Legal Compliance Information Technology Systems. Apres 'le Weekend'

A number of articles have been written about IT law aspects of the euro, and there is the implication that there is something special about euro implementation from the IT law point of view. While there are particular issues arising with the rounding and conversion rules, the conclusion in this article is that, even though the euro is not 'just another currency', a euro IT project is just like most other complex IT projects … only more so. A euro IT project for a multinational in Europe could be as big as any which that company has yet handled, because it may well involve the introduction of entirely new financial and accounting systems. For that reason, customers should follow proper contractual and project procedures. Suppliers should be careful about what they include in their warranties and specifications and should avoid over-general or overgenerous warranties. In response, end-users must allow as much time as possible, make the effort to scope their requirements, to understand what they need, and to make sure that their contracts and schedules capture all those needs.