Transnational Legal Unity Under Pressure: A Contextual Analysis of the European Union

AuthorElaine Mak
PositionProfessor of Jurisprudence at Utrecht University, NL and guest editor of this special issue
Pages1-3
Elaine Mak, ‘Transnational Legal Unity Under Pressure: A
Contextual Analysis of the European Union’ (2018) 34(1)
Utrecht Journal of International and European Law
pp. 1-3, DOI: https://doi.org/10.5334/ujiel.469
UTRECHT JOURNAL OF
INTERN
ATIONAL AND EUROPEAN LA
W
EDITORIAL
Transnational Legal Unity Under Pressure:
A Contextual Analysis of the European Union
Elaine Mak*
I. Introduction
Legal unity can be characterised as an important feature of complex legal orders, which guarantees rule-
of-law values such as equality before the law, legal certainty, and the prevention of the arbitrary exercise
of public power. In a formal sense, legal unity can be understood as a notion which contributes to the
establishment and continued existence of a peaceful social order. In a substantive sense, legal unity can be
understood as a
notion which underpins the realisation of specific outcomes for the benefit of societies
or their individual members, e.g. outcomes relating to the increase of economic wealth for all, or to
the equal treatment of individuals.1 With regard to both understandings of the principle of legal unity,
legislators and courts – as institutions on which public power has been conferred – have a duty to strive
for consistency and coherence in the development and application of legal rules, while allowing space for
legitimate differentiation.2
In a globalised world, the principle of legal unity takes on a new meaning and its realisation encounters
new challenges. As the most integrated supranational legal order in the world at present, the European
Union (EU) brings out these challenges very clearly. As a first challenge, complexity is added by the diversity
between national legal doctrines and rules and between traditions of law-making and law development.
Legal harmonisation and spontaneous legal convergence can foster legal unity, but both might neither
be fully achievable nor desirable in the transnational context.3 Second, different political, economic and
moral values may underlie the different jurisdictions. This diversity might entail instances for legitimate
differentiation, which ultimately could make the realisation of legal unit y illusory.4 Equally, renewed societal
or political emphasis on national constitutional values – e.g. visible in ‘Brexit’, or in the rise of democratic
illiberalism in Hungary and Poland – can result in an undoing of established transnational legal connec-
tions. Third, language and language proficiency influence the ability of law’s draf tsmen and judges to realise
legal unity. The level of language skills, or the absence of a shared understanding of law, might hamper the
quality of transnational legal communication.5
* Professor of Jurisprudence at Utrecht University, NL and guest editor of this special issue. Contact: e.mak@uu.nl.
1 These definitions connect with the broad scope of scholarly perspectives and societal interests on legal unity which were identi-
fied in discussions with our colleagues at the Montaigne Centre. See Eddy Bauw, ‘The Unity of Law I: Blogging about the Unity of
Law? The Kick-off’ Blog of the Montaigne Centre for Rule of Law and Administration of Justice. (17 November 2015)
montaignecentre.com/index.php/231/blogging-about-the-coherence-of-law-the-kick-off-eddy-bauw/> accessed 11 May 2018;
Rolf Ortlep, ‘The Unity of Law II: A Step towards a Definition and Instruments that Can Optimize the Unity of Law’ Blog of the
Montaigne Centre (24 February 2016)
definition-and-instruments-that-can-optimize-the-unity-of-law-rolf-ortlep/#more-275> accessed 11 May 2018.
2 For an overview of different accounts of coherence in the philosophy of law, see Julie Dickson, ‘Interpretation and Coherence in
Legal Reasoning’ In: Edward N. Zalta (ed), Stanford Encyclopedia of Philosophy (Winter 2016 Edition),
archives/win2016/entries/legal-reas-interpret/> accessed 11 May 2018. See also Kiewiet in this special issue, section I.B.
3 For further elaboration and illustration, see Mulder; Mak, Graaf and Jackson; Brouwer; and Van Dorp and Phoa in this special issue.
4 In strong support of this thesis, see Pierre Legrand, ‘European Legal Systems are not Converging’ (1996) 45 International and
Comparative Law Quarterly 52, 61–62. In a more moderate sense, see Geneviève Helleringer and Kai Purnhagen, ‘On the Terms,
Relevance and Impact of a European Legal Culture’ In: Geneviève Helleringer and Kai Purnhagen (eds), Towards a European Legal
Culture (Beck/Hart Publishing/Nomos 2014) 7, who argue “that cultural pluralism itself might be a feature of European legal
culture and that diversity is not something that is in opposition to, but rather constitutes a new and different understanding of
European legal culture”. In this special issue, see Mulder, section IV.; Mak, Graaf and Jackson, section III.; Brouwer, section V.
5 Karen McAuliffe, ‘Language and Law in the European Union: The Multilingual Jurisprudence of the ECJ’ In: Lawrence M. Solan and
Peter M. Tiersma (eds), The Oxford Handbook of Law and Language (OUP 2012). See further Van Dorp and Phoa in this special issue.
Transnational Legal Unity Under Pressure2
This special issue aims to enable readers to develop a better understanding of the notion of legal unity in a
globalised legal context and of the possibilities and constraints for its realisation, focusing on the European
legal integration as an emblematic case study. The articles in this issue address different aspects of legal
unity in Europe and analyse these from a variety of ‘law in context’ perspectives, including comparative
law, legal history, legal philosophy, constitutional theor y, socio-legal analysis, and philosophy of language.
This kaleidoscopic set-up allows for an in-depth discussion of specific topics, while bringing out connecting
‘threads’ on the special issue’s overarching theme. In this way, the analyses clarify where pressures on trans-
national legal unity in the EU exist and where (or where not) these pressures may be relieved.
II. The Articles
Jotte Mulder’s article starts out from the question: how can the diversity between social-economic systems
of Member States be unified within one internal market? The challenge for EU internal market law is to
maintain unity of European law whilst allowing sufficient space for each Member State to endorse its own
values. The difficulty of striking a balance is clearly manifested in the area of (economic) free movement law
on the basis of which economic actors have a right to unfettered access to markets, while Member States’
policy choices often restrict that access with socio-economic regulation. Such restrictions must be justified
and here the Court of Justice of the EU (CJEU) has been confronted with the question: which choices of
Member States should be allowed and on what basis? In doing so, the balance is sought at the intersection
of unity (of European law) and diversity (of Member State interests). Mulder’s contribution looks at this
intersection in the CJEU’s case law and asks whether we can derive consistent adjudicative methods with
respect to this question. He develops an ideal-types typology of the dif ferent modes of reasoning which the
CJEU has adopted to adjudicate cases at the intersection of unity and diversity. Based on his analysis, Mulder
concludes that the CJEU manages to reconcile the uniform application of internal market law with the
socio-economic diversity of the Member States by taking a ‘good governance’ based approach. If a Member
State’s system of protection is coherently and systematically part of an existing normative infrastructure
that is tailored towards the level or protection that it seeks to protect, this system of protection is provided
with a definite margin of discretion and unlikely to be struck down by EU law. The normative ideal that the
Court pursues for the internal market may, therefore, very well be characterised as one of unity in diversity.
Elaine Mak, Niels Graaf and Erin Jackson analyse the framework for judicial cooperation in the EU and
focus on the notion of ‘judicial culture’. Recent discussions on judicial independence in Hungary and Poland
underline that we are still quite far removed from the realisation of a shared European normative basis for
judicial functioning, that is: a shared ‘judicial culture’. At the same time, these discussions emphasise the
importance of such a basis for the realisation of the ideal of the rule of law. As a stepping stone for future
interdisciplinary legal research, Mak, Graaf and Jackson provide a theoretical analysis of the concept of judi-
cial culture and three of its core dimensions: ethical, legal, and institutional. Their analysis demonstrates
that by carefully establishing in which types of sources we can locate the respective dimensions, and by
designing a methodology for analysing these sources, scholars can analyse judicial cultures in a more in-
depth and systematic manner. In this way, specific conceptual ‘lenses’ become available for the collection
of relevant information and empirical data, for the theoretical analysis and comparison of these results and
eventually for a normative assessment of the possibility and desirability of alignment of judicial cultures.
From this perspective, their analysis contributes to further insight into questions on legal unity and its reali-
sation in a context of diverging social pressures.
René Brouwer takes a perspective with historical and philosophical distance, such that a better understand-
ing of the development of legal unity in the EU can be obtained. In his article, starting out from the introduc-
tion of the notion of system in Western thought, he offers an analysis of the different ways ‘system’ has been
taken up in the common and civil law traditions, the two main Western legal traditions, which underlie the
legal systems of the Member States. Whereas in the continental ‘civil law’ tradition ‘system’ is used in relation
to the substance of the law, in the English ‘common law’ tradition ‘system’ is rather used in relation to the
functioning of the law, more particular in the sense of finding solutions to legal problems that are consist-
ent with earlier ones. Brouwer explains these different uses from a historical-philosophical point of view. In
the civil law tradition, the notion of system goes back to the exposition of substantive legal doctrine, which
– under the influence of Stoic thought – was already developed by lawyers in the Roman Republic, and for
the first time elevated to statute by the Byzantine emperor Justinian, whereas in the common law tradition
the Byzantine-Roman organisation was not taken over, and system rather connotes with the manner in which
conflicts can be resolved on a case-by-case manner, and hence has come to refer to the machinery of law.
Brouwer suggests that these different meanings may pose a challenge where legal unity is sought between
jurisdictions that belong to different traditions. The ‘Brexit’ poses a striking example of how this challenge can
Mak 3
play out in a specific political and societal context. The divide between meanings of ‘system’ appears to have
become unsurmountable in the relation between the UK and the EU, where the different understandings of
system in the English common law tradition and the continental civil law may have led to the opposite effect.
Jeroen Kiewiet offers an analysis of how theories on constitutional revision can help to understand crises
that threaten legal unity. From the perspective of constitutional theory, he discusses the Catalonian crisis as
a recent case study. Kiewiet starts out from a definition of ‘legal unity’ as the organisational as well as politi-
cal claim of constitutions to provide unity within a certain legal order, which in the end comes close to the
idea of a unified national state. He refers to the constitutional theories of Carl Schmitt and the lesser-known
Hugo Krabbe to help increase our understanding of constitutional change and to connect these insights to
the Catalonian case. Schmitt’s claim is that constitutional law is indeterminate and thus in need of the sover-
eign’s decision. In his analysis Kiewiet makes clear that Schmitt’s argumentative scheme in which a distinc-
tion is made between friends and enemies in political conflict is unhelpful for addressing the Spanish crisis.
Indeed, Schmitt moves beyond descriptive and explanatory goals to defend a normative rejection of liberal
political decision-making. By contrast, Krabbe argues for the determinacy of constitutional law. According
to Krabbe, constitutional law is finally embedded in ‘legal consciousness’, inherent to all human being, and
which can be determined by majority rule. Even if this answer may not entirely convince, Kiewiet maintains
that this theoretical perspective could nevertheless benefit cases such as the Catalonian constitutional crisis,
if consequently claims of both the Catalan and Spanish Federal sides based on the idea of ultimate sover-
eignty over a demarcated territory were dropped.
Jacobien van Dorp and Pauline Phoa address the question: how to continue a meaningful judicial dialogue
in EU law? They take the CJEU’s CILFIT judgment (case 283/81) as a point of departure, and critically explore
the practice of legal interpretation of EU law from a language philosophical perspective. In the CILFIT judg-
ment, the Court drew attention to the “particular difficulties” to which the interpretation of EU law gives
rise, namely the fact that “[EU] legislation is drafted in several languages”, all of which are “equally authentic”.
Moreover, the Court recalled that “Community law uses different terminology which is particular to it. (…)
legal concepts do not necessarily have the same meaning in Community law and in the law of the various
Member States.” With use of two different views on language, illustrated by Wittgenstein’s later philosophy
of language, Van Dorp and Phoa discuss the “dif ficulties” highlighted by the Court in the CILFIT judgment.
This discussion brings them to the question: how can this judicial dialogue, which aspires to achieve unity in
EU law, at the same time accommodate not just the diversity of national languages, but, more importantly,
the diversity of national legal cultures? In other words, what should the CJEU be doing to take into account
the different language versions (and underlying legal cultures) of EU law, and at the same time do something
that is particularly European, and how should Member States respond to this particularity? In the conclusion
Van Dorp and Phoa formulate an answer to this question in which they (begin to) spell out the structure of
the translation process that the Court and Member States should undertake.
Competing Interests
The author has no competing interests to declare.
Author Information
The contributions to this special issue were developed within the research programme of the Montaigne
Centre for Rule of Law and Administration of Justice at Utrecht University. The authors would like to thank
fellow researchers at the Centre, the editorial board of this journal and the anonymous peer reviewers for
comments received on draft versions and presentations of our articles.
How to cite this article: Elaine Mak , ‘Transnational Legal Unity Under Pressure: A Contextual Analysis of the European
Union’ (2018) 34(1) Utrecht Journal of International and European Law pp. 1-3, DOI: https://doi.org/10.5334/ujiel.469
Submitted: 29 May 2018 Accepted: 29 May 2018 Published: 07 June 2018
Copyright: © 2018 The Author(s). This is an open-access article distributed under the terms of the Creative
Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and
reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/
licenses/by/4.0/.
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