Unity in Diversity as Europe’s Vocation and Conflicts Law as Europe’s Constitutional Form

50 Pages Posted: 11 Dec 2010 Last revised: 17 Apr 2013

See all articles by Christian Joerges

Christian Joerges

University of Bremen - Faculty of Law; Hertie School of Governance

Date Written: April 2013

Abstract

“Unity in Diversity” was the fortunate motto of the otherwise unfortunate Draft Constitutional Treaty. The motto did not make it into the Treaty of Lisbon. It deserves to be kept alive in a new constitutional perspective, namely the re-conceptualisation of European law as new type of conflicts law. The new type of conflicts law which the paper advocates is not concerned with selecting the proper legal system in cases with connections to various jurisdictions. It is instead meant to respond to the increasing interdependence of formerly more autonomous legal orders and to the democracy failure of constitutional states which result from the external effects of their laws and legal decisions on non-nationals. European has many means to compensate these shortcomings. It can derive its legitimacy from that compensatory potential without developing federal aspirations.

The paper illustrates this approach with the help of a topical example, namely the conflict between European economic freedoms and national industrial relations (collective labour) law. The recent jurisprudence of the ECJ in Viking, Laval, and Rüffert in which the Court established the supremacy of the freedoms over national labour law is criticised as a counter-productive deepening of Europe's constitutional asymmetry and its social deficit. The introductory and the concluding sections generalise the perspectives of the conflicts-law approach. The introductory section takes issue with max Weber’s national state. The concluding section suggests a three dimensional differentiation of the approach which seeks to respond to the need for transnational egulation and governance.

JEL Classification: Z00

Suggested Citation

Joerges, Christian, Unity in Diversity as Europe’s Vocation and Conflicts Law as Europe’s Constitutional Form (April 2013). LEQS Paper No. 28. Available at SSRN: https://ssrn.com/abstract=1723249 or http://dx.doi.org/10.2139/ssrn.1723249

Christian Joerges (Contact Author)

University of Bremen - Faculty of Law ( email )

PO Box 330440
Bremen, 28334
Germany

Hertie School of Governance ( email )

Friedrichstraße 180
Berlin, 10117
Germany

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