The 'Fertile Dilemma of Law': Legal Integration and Legal Cultures in the European Union

16 Pages Posted: 6 Apr 2009

See all articles by Jennifer Hendry

Jennifer Hendry

School of Law, University of Leeds

Daniel Augenstein

Tilburg University

Date Written: April 5, 2009

Abstract

The aim of this paper is to develop an analytical framework for legal integration (integration through law / integration of law) in the European Union from the perspective of legal culture. We advance a relational conception of legal culture that builds on the tension between, and the reciprocal adaptation of, legal rules and social norms (process) in a given institutional order (unit). Drawing on Paul Bohannan's notion of double institutionalisation of law, we first analyse the relationship between legal rules and social norms in the state legal order. Secondly, we submit that due to the enhanced level of integration of the European polity as compared to traditional international law-type entities it is possible to cognise a European Union legal culture which is simultaneously distinct from and mutually constitutive of the legal cultures of its Member States. We conclude that from the perspective of legal culture, the challenges of European integration are not adequately described either in terms of a 'conflict of laws' or in terms of a 'clash of cultures'. Rather, legal integration in the European Union should be understood as building on parallel but interlocking processes of double institutionalisation of law at the European and the national levels.

Keywords: European integration, integration through law, legal theory, legal culture, double institutionalisation

Suggested Citation

Hendry, Jennifer and Augenstein, Daniel, The 'Fertile Dilemma of Law': Legal Integration and Legal Cultures in the European Union (April 5, 2009). Tilburg Institute of Comparative and Transnational Law Working Paper 2009/06. Available at SSRN: https://ssrn.com/abstract=1373471 or http://dx.doi.org/10.2139/ssrn.1373471

Jennifer Hendry (Contact Author)

School of Law, University of Leeds ( email )

Leeds LS2 9JT
United Kingdom

HOME PAGE: http://www.law.leeds.ac.uk/about/staff/hendry.php

Daniel Augenstein

Tilburg University ( email )

P.O. Box 90153
Tilburg, DC 5000 LE
Netherlands

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