Conflicts Law as Constitutional Form in the Post-National Constellation: Special Issue of Transnational Legal Theory
Transnational Legal Theory, Vol. 2, No. 2, 2011
13 Pages Posted: 15 Dec 2011 Last revised: 29 Aug 2016
Date Written: December 14, 2011
The ‘conflicts law approach’ reconstructs the potential of primarily, but not exclusively, European law to address — ‘to compensate’ — the threat to democracy that is posed by the concern that citizens would increasingly be subject to the effects of laws which they themselves had not authored. This structural democratic deficit calls for consideration of ‘foreign’ demands. It also calls for cooperation and mutual respect between political constituencies. The normative basis for understanding conflicts law as a constitutional form with democratically grounded validity claims stems from the proposition that states must acknowledge or establish a law that provides a forum for foreign demands and manifests deference through transnational rules. Descriptively, the approach sets out to examine three types of conflict constellations — horizontal, vertical and diagonal legal conflicts — and three types of law-mediated responses, layered as the scheme of a ‘three-dimensional conflicts law’. In this special issue, seven articles, including the present, illustrate the problem constellation to which the evolving conflicts law approach responds and discuss problems with, or limitations of, the approach.
Keywords: Conflicts law, democracy, European Union, Transnational law, proceduralisation, multi-level governance
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