Title: __Voices of Difference in a Plural Community
Author: Steve Pearson
Last saved by: Sieglinde Schreiner-Linford
Company: .

Harvard Law School

Jean Monnet Chair

The Jean Monnet Seminar and Workshop on the European Union, NAFTA and the WTO
Advanced Issues in Law and Policy

Professor J.H.H. Weiler

Harvard Jean Monnet Working Paper 03/00

Carol Harlow

Voices of Difference in a Plural Community

Harvard Law School    Cambridge, MA 02138

All rights reserved.
No part of this paper may be reproduced in any form
Without permission of the author.

© Carol Harlow 2000
Harvard Law School
Cambridge, MA 02138 
USA

		Voices of Difference in a Plural Community

		In trying to redefine itself, Europe is forgetting
		 and ignoring its cultural history.

	Jacques Derrida

I. Introduction

The statement of intention by the European Council at Tampere to promote greater cooperation in the domain of Justice and Home Affairs placed "co-ordination" of our national criminal justice systems squarely on the EU agenda . Work was also authorised, and is now well advanced, on the drafting of an EU Charter of Rights . Both are steps in the direction of legal unity. In addition, many civil lawyers would agree with Heinz Kotz that 

Conclusions of the Finnish Presidency, Tampere, Doc 200/99 (15-16 June 1999).

Authorised by a decision of the European Council at Cologne, 3-4 June 1999, activated by the Tampere European Council, 15-16 June 1999.

H. Kotz, "Towards a European Civil Code", in P. Cane and J. Stapleton (eds) The Law of Obligations, Essays in Celebration of John Fleming, Clarendon, 1998, pp. 243-4.

	a serious effort must be made to develop a common core of European legal principles and rules, to engage in the construction of a European legal lingua franca... and thus to lay the basis for what will be needed when the time is ripe to undertake the project of a European Civil Code. 

This common core of principles, popular with comparative lawyers, is coming to be called the ius commune . Many EC lawyers  see the European Union as the forum conveniens for the ius commune. They believe that it is already emerging and should be encouraged to emerge through the convergence of national legal systems inside the framework of the European Union. 

For discussion and explanation of the ius commune, see B. Jackson, "Legal Visions of the New Europe: Ius Gentium, Ius Commune, European Law", in B. Jackson and D. McGoldrick (eds), Legal Visions of the New Europe, Graham and Trotman, 1993.

Notably W. van Gerven, "Bridging the Gap Between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies?" (1995) 32 CML Rev 679 and "Bridging the unbridgeable: Community and national tort laws after Francovich and Brasserie" (1996) 45 ICLQ 507. See also R. Caranta, "Judicial Protection Against Member States: A New Jus Commune Takes Shape" (1995) 32 CML Rev 703.

In contrast, this chapter draws support from the contrary signals given by the concept of subsidiarity introduced by the TEU and reiterated at Amsterdam . It sets out to present the counter-argument for diversity and legal pluralism within the EU, the emphasis throughout being on public and procedural law. The argument rests on the belief that a pluralist Europe is not inconsistent with a commitment to internationalism. Cultural diversity is valuable in its own right and is a basic strength of the European enterprise, providing a valuable genetic store of cultural experience, essential as a foundation for constitutional and legal experiment and as a yardstick against which to measure the infant institutions of the EU. The need for diversity is indirectly recognised in the Preamble to the TEU, which confirms the desire of the Masters of the Treaties "to deepen the solidarity between their peoples while respecting their history, their culture and their traditions". This commitment is reflected in the Draft Charter of Human Rights, which proclaims respect for "cultural, religious and linguistic diversity" . In the Treaty of Amsterdam we find a specific reference to legal culture, requiring "care [to] be taken to respect well established national arrangements and the organisation and working of Member States' legal systems" . 

Treaty of Amsterdam, Protocol on the Application of the Pinciples of Subsidiarity and Proportionality. On the history of differentiation, see C-D. Ehlermann, "Differentiation, Flexibility, Closer Co-operation: The New Provisions of the Amsterdam Treaty" (1998) 4 European Law Journal 246.

Article 22 of the Draft Charter of Fundamental Rights of the European Union, Charter 4487/1/00 Rev 1 (10 October 2000).

Treaty of Amsterdam, Protocol on the Application of the Principle of Subsidiarity and Proportionality, para. 7.

In modern liberal democracies which acknowledge the need for limited government, the authority of the judiciary is traditionally justified in terms of the rule of law, a principle with which lawyers tend naturally to empathise strongly. This inclines them to read arguments for democracy as an argument for legislative sovereignty in its narrowest and least reflective sense. The rule of law clearly forms an essential element of liberal democracy and plays its part in providing the theoretical basis for an independent judiciary but it forms only one side of a balanced constitution or debate about a balanced constitution. This chapter is premissed on the ideal of pluralist democracy, seen as the best, though also the most demanding, form of government that contemporary society has to offer. For the purposes of the argument, a simple but robust definition of democracy has been adopted as a form of popular political self-government with "the people of a country deciding for themselves the contents of the laws that organize and regulate their political association ". In this chapter, the political components of democracy have been stressed, though the author accepts that the balance of power in modern constitutions is typically more complex. The true position is reflected in the Preamble to the TEU, where the Member States confirm their "attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law", a formulation not changed at Amsterdam. It should be noted that liberty and democracy here take precedence over respect for human rights and fundamental freedoms and of the rule of law. 

F. Michelman, "Brennan and Democracy: the 1996-97 Brennan Centre Symposium Lecture" (1998) 86 California Law Review 399, 400.

Underlying the argument of this paper are two further assumptions. First, law is seen not merely as a toolkit of autonomous concepts readily transferable in time and space, but as a cultural artifact embedded in the society in which it functions. This conception of law is discussed in Section II.2. Secondly, the paper maintains that a legal system is part of the governmental arrangements of a given state or society. A legal system is not and never can be "autonomous" in the sense of lying outside the system of governance, though this is not to deny the judicial independence demanded in modern European constitutions, which often finds expression through the doctrine of separation of powers. (In any society whose constitution is written, the distinction will be self-evident).  

Neither "harmonisation" nor "convergence", which bear broadly the same meaning, are terms of art and in this paper they are distinguished. The term "harmonisation" is here reserved for a conscious and negotiated process of harmonisation, culminating in a rulemaking procedure or legislative act. The European Commission has in the past sponsored several efforts at legal harmonisation, notably in the area of consumer protection law and products liability . Latterly, however, the Commission - perhaps more sensitive to the problems of harmonisation in a wider and more divergent Community - has been more selective; rather than attempt broad, general harmonisation, it has sought agreement on specific action in limited areas: a common law of remedies inside the public procurement directives, for example . Attempts made to arrive at a codification of European civil law  and the law of judicial procedure have so far had negative outcomes. Indeed, the Storme Commission, the semi-official body set up under the sponsorship of the European Parliament to harmonise procedural law and to draw up a "European Judicial Code", ultimately concluded that the basic distinction in European legal systems between adversarial and inquisitorial procedures was "so deeply enshrined in the respective legal cultures as to make harmonisation practically unfeasible" .  

EEC 93/13 Directive on unfair terms in consumer contracts and EEC 85/374 Directive concerning liability for defective products.

EEC 89/665 Directive on Remedies.

A. Hartkamp et al (eds), Towards a European Civil Code 1994.

M. Storme, "General Introductory Report", in M. Storme (ed), Rapprochement du Droit Judiciare de l'Union Europeenne, Martinus Nijhoff, 1994, p.63.

The term "convergence" can be used in several senses. It may simply denote the coming together of legal systems through mutual interest and common development, often perceived as an inevitable part of the process of "globalisation". The cumbersome phrase "cross-fertilisation" , is really a better way of expressing this process. But in the context of the EU, convergence may also denote the process of harmonisation of national legal principle and procedure brought about by the jurisprudence of the European Court of Justice. In this paper, the term "vertical convergence" is used to convey judicial intervention of this type. "Vertical convergence", which draws on the doctrine of precedent to impose common principles or common rules of interpretation through the rulings of superior courts, has been seen by the ECJ as lying very much at the centre of its role. The boldest example to date of this type of judicial harmonisation is perhaps the case of Member State liability, imposed by the ECJ in Francovich  for failure correctly to transpose EC Directives. While many EC lawyers accept vertical convergence as unexceptional and well within the remit of a superior court , others would certainly question its legitimacy . 

See J. Beatson and T. Tridimas (eds), New Directions in European Public Law, Hart Publishing, 1998.

Joined Cases 6, 9/90 Francovich and Bonafaci v Italy [1991] ECR I-5357. And see Joined Cases C 46/93 and C 48/93 Brasserie du Pecheur SA v Germany  R v Transport Secretary ex p. Factortame (No 4) [1996] ECR I-1029.

A. Toth, "The Authority of Judgements of the European Court of Justice: Binding Force and Legal Effects", in N. MacCormick and R. Summers, Interpreting precedents: a comparative study, Dartmouth, 1997.

T. Hartley, "The European Court, Judicial Objectivity and the Constitution of the European Union" (1996) 112 Law Quarterly Review 95. The classic attack is by H. Rasmussen, On Law and Policy in the Court of Justice, Martinus Nijhoff, 1986.

To the ECJ, "horizontal divergence" in the sense of variance between the legal principles and procedures of the Member States, is often problematic. But in ironing out discrepancies, an equally difficult problem of horizontal divergence may be passed to national courts. This occurs when rules applicable in different areas of domestic law diverge because of the introduction of a principle of EC law which is out of synchronisation with the existing rules of the domestic legal system. This gap creates a quandary for a national judiciary charged with maintaining so far as possible the integrity of the domestic legal system. The standard reaction of EC lawyers to problems of horizontal convergence is to treat them simply as a question of "levelling up" to a common EC standard, generally assumed to be "higher law" in both senses of the phrase. The fallacy of the "levelling up" concept is discussed in Section IV. 

II. Law, Democracy and Culture

	1.  Law and Democracy

Explanations of European governance were at first largely grounded in international relations theory, notably neofunctionalism and intergovernmentalism, where democracy is not a special concern . Legitimacy was not really in issue in the era of so-called "tacit consent", when the European project was seen as essentially an affair of elites who could rely on a docile public to support their decisions uncritically, including the low visibility decisions of the Court of Justice . Elite government at Community level was seen as validated by representative democracy at national level . It is important to note that this was the prevailing political culture at the time when the doctrine of supremacy was shaped (Below, Section III.2). 

M. Horeth, "No way out for the beast? The unsolved legitimacy problem of European governance" (1999) 6 Journal of European Public Policy 249.

D. Obradovic, "Policy Legitimacy and the European Union" (1996) 34 Journal of Common Market Studies 191.

S. Andersen and T. Burns, "The European Union and the Erosion of Parliamentary Democracy: A Study of Post-parliamentary Governance", in S. Andersen and K. Eliassen, The European Union: How Democratic Is It?, Sage, 1996.

When the Community was first perceived as possessing a "democratic deficit", this was largely defined in terms of the absence of representative institutions at EC level. Only after direct elections were conceded in 1979 did attention turn from representation to the problem of sovereignty as manifested in the EP's lack of sovereign lawmaking powers. Significantly, both variants on the theme of representative democracy were under discussion in the formative years when the ECJ was forging the basic constitutional principles of the Community; both were reflected in some of the Court's most ambitious jurisprudence of the period; and both are compatible with integrationism (Below, Section III.1). The robust definition adopted in this paper of popular democratic government is incompatible both with the notion of legitimation through the doctrine of "passive consent" and with elite government, even in the modified two-tier theory of European democracy, whereby popular democracy at national level justifies elite governance in the Community.

Today the argument has shifted. Models of deliberative and participatory democracy are increasingly fashionable . These are of course consonant with pluralism; they could flourish in a federal Europe endowed with strong representative institutions and traditions, or a "Europe of the Regions". Popular or populist democracy also contains a notion of inclusivity: as Scott puts it 

P. Craig,"Democracy and Rule-making Within the EC: An Empirical and Normative Assessment" (1997) 3 European Law Journal 105; D. Curtin, Postnational Democracy. The European Union in Search of a Political Philosophy, Kluwer, 1997 and "'Civil Society' and the European Union: Opening Spaces for Deliberative Democracy?" in Collected Courses of the Academy of European Law, vol VII, Book 1, p. 185.

	the modern republic is an inclusive republic which seeks to render audible and effective all the "voices of difference" emanating from within the polity . 

J. Scott, "Law, Legitimacy and EC Governance: Prospects for 'Partnership'" (1998) 36 Journal of Common Market Studies 175, 177.

This, however, necessitates provision not only of machinery for representation but also of pathways for direct public participation in policy- and decision-making. To some theorists of European governance, participatory proceduralism can be used strongly to promote pluralist democracy ; in practice, however, it contains a powerful bias towards elitism or forms of corporate governance in which interest groups obtain a stranglehold on policy. The "constitutionalisation" of administrative procedures also creates its own problems, discussed in Section IV below. 

K-H Ladeur, "Towards a Legal Theory of Supranationality - The Validity of the Network Concept" (1997) 3 European Law Journal 33.

This chapter suggests that arguments for the convergence of European legal systems are tacitly based on elitist theories of European government and originate in the doctrine of passive consent. At Community level, the relocation of power has typically been achieved through a judge-made construction - to which national and European judiciaries have contributed - of constitutional norms imposed on the democratic institutions of governance in the name of public law. Thus the effect of a "unified system of judicial protection" throughout Europe could be at least as significant as harmonisation of procedural criminal law through the sprouting Corpus Juris project .

See M. Delmas-Marty (ed), Corpus Juris introducing penal provisions for the purpose of the European Union, Paris, Economica, 1997; W. van Gerven, "Constitutional Conditions for a Public Prosecutor's Office at the European Level", in G. De Kerchove and A Wyenbergh (eds), Vers un espace judiciaire europeen, Editions ULB, 2000.

What we are seeing is a variant of the "open flank" argument, according to which democratic deficit at European level, or shifts in the balance of power between European and national institutions, impact unfavourably on democratic government at national level. Daniel Wincott calls this the "perversion" of European democracy by the two-tier system of European governance, which has had the effect of cutting down "domestic mechanisms of democratic accountability" and so "perverting" the constitutional balance between executive and legislative organs at national level . Similarly, relocation of power to the European judiciary, anti-democratic in the sense that it substitutes one form of elite government in the Community for another, can "subvert" national democracy by indirectly shifting the balance of power at national level. That a substantial horizontal relocation of power from parliamentary institutions towards a non-elected judiciary is already occurring, and that this transfer of power to the judiciary is visible at both national and Community levels, is widely accepted; indeed, it is a matter of self-congratulation for many lawyers. These developments are dangerous in that they inhibit and supersede democratic discussion and debate. 

D. Wincott, "Does the European Union Pervert Democracy? Questions of Democracy in New Constitutionalist Thought on the Future of Europe" (1999) 4 European Law Journal 411. See also D. Chryssochoou, "Democracy and Symbiosis in the European Union: Towards a Confederal Consociation?" (1994) 17 W. European Politics 1.

	2. Law as Culture

Formalist or positivist traditions of legal scholarship present law as a special system of reasoning, characterised by a quality of coherence or as a set of principles arranged as a system of artificial logic. As the distinguished comparativist F.H. Lawson once observed :

"Comparative Law as an Instrument of Legal Culture", in F.H. Lawson, Selected Essays, Oxford, 1977, Vol II, p. 73.

	All law tends to become a collection of lines of systematic thought made to follow logically from a limited number of premisses; or rather, from a number of decisions of one kind or another, legislative or judicial, systematic bodies of principle are established by a process of induction, and those principles acquire a sanctity of their own which turns them into axiomatic premisses from which other rules and principles can be deduced. This is a process which cannot be avoided. 

The view of law as a set of coherent and systematic body of legal norms cemented by a specialised method of reasoning is a central feature of the civilian legal tradition  and is widely accepted by lawyers as applying to the Community legal system . To complete the positivist picture of orderliness and coherence, the concepts which form the building blocks of the system are seen as autonomous and neutral. Legal concepts become empty vessels, superficially similar and transferable, at least within a given legal family or closely related families . At this level of abstraction, for example, it is possible to say that fault is the basis of delictual liability in European legal systems. Similarities between legal systems may also be enhanced by drawing a distinction between the structure of legal reasoning, presented as similar inside European legal families, and presentation of legal argument, seen as a surface variant . The view of legal concepts as readily comparable and interchangeable is naturally attractive to EC lawyers because it facilitates and downplays problems of harmonisation and integration of Community legal systems. 

J.H. Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, Stanford University Press, 1969.

F. Snyder, "General Course on Constitutional Law of the European Union", in Collected Courses of the Academy of European Law, 1997, p.50, cites to this effect classic texts by J-V Louis, The Community Legal Order, 2nd edn 1990, p.13 and G. Isaac, Droit communautaire general, 1983, p. 111.

For the concept of legal families (discussed further below), see R. David and J. Brierly, The Major Legal Systems in the World Today, Butterworths, 3rd edn 1985, pp. 17-20.

J. Bell, "English and French Law - Not so Different?" (1995) 48 Current Legal Problems 63. The argument is justifiably critiqued by B. Markesinis, "The Comparatist (or a Plea for a Broader Legal Education)" (1995) 15 Yearbook of European Law 262, 269.

Even at the simple level of legal concept, however, harmonisation and convergence may often be illusory. Familiar words like "fault", with apparently similar or even identical meanings when translated, may be differently understood and applied in different legal cultures. This is the underlying message of Pierre Legrand :

P. Legrand, "European Legal Systems Are Not Converging" (1996) 45 Internatonal and Comparative Law Quarterly 52, 56.

	[R]ules and concepts alone actually tell one very little about a given legal system... They may provide one with much information about what is apparently happening, but they indicate nothing about the deep structures of legal systems. Specifically, rules and concepts do little to disclose that legal systems are but the surface manifestation of legal cultures and, indeed, of culture tout court. In other words, they limit the observer to a "thin description" and foreclose the possibility of the "thick description" that the analyst ought to regard as desirable.

Legal systems are here seen as built up through habits, customs and practices which infuse law and dictate the way in which it will be interpreted. To this cultural package, Legrand attaches the term "mentalité". 

Legrand's thesis can be misrepresented as an extremist argument against any form of convergence, harmonisation or incorporation, a claim which would not only render legal systems wholly immune from outside influence but which argues against the course of European history . An alternative way to read his core argument concerning mentalité is, however, rather persuasive. Legrand points to several features of the common law, such as the way it moves from fact to principle and remedy to rights, which form its "deep structure". When apparently simple concepts such as good faith or fault are transferred from one legal system to another, the methodology of the system will operate to limit the effect of the transplantation. If fault, for example, is installed as the basis of delictual and tortious liability in every European legal system, what is construed as fault may vary as considerably over spatial boundaries as it has been seen to do over time periods. Fault is a flexible concept, variable along a spectrum, and a system can easily instal or reinstate strict liability through the doctrine of "presumptive fault"; systems protective of defendants may in practice require proof of “grave fault”. Something very like this has happened with the interpretation of the uniform EC Products Liability Directive, where harmonisation has in practice come to mean approximation. Legrand's mentalité concept explains why the reality of incorporation is so often "translation". It can indeed be compared with the original notion of the directive in EC law, which required Member States to work towards a given goal, with the flexibility to work with the mentalité of their own legal system and not against the grain. This conception has, however, been rendered partially nugatory by the ECJ's promotion of the doctrine of "direct effect".

R. van Caenegem, An Historical Introduction to Private Law, Cambridge University Press, 1992.

Somewhat similar is Gunther Teubner's conception of "legal transplants" as ,

G. Teubner, "Legal Irritants: Good Faith in British Law Or How Unifying Law Ends Up in New Divergencies" (1998) 61 Modern Law Review 11, 12.

	a fundamental irritation which triggers a whole series of new and unexpected events... [they irritate] law's 'binding arrangements'... they unleash an evolutionary dynamic in which the external rule's meaning will be reconstructed and the internal context will undergo fundamental change.

Like Legrand, Teubner rejects the idea that that foreign transplants are easily absorbed by the host system and draws on sociological research to argue that proponents of harmonisation are moving in precisely the wrong direction. Globalisation will not necessarily result in a "convergence of social orders and in a uniformisation of law" because "different sectors of the globalised society do not face the same problems for their laws to deal with" . Basil Markesinis provides a telling example drawn from the area of tort law harmonisation . Tort law and welfare law, he argues cogently, are two closely related areas of law which have been allowed to proliferate in uncoordinated fashion inside national legal systems, largely because the first is categorised as civil law and the second primarily as administrative. In the light of different national attitudes to welfare, vertical convergence of tort laws is likely to increase horizontal disjunction of tort and welfare law; yet to attempt at one and the same time vertical and horizontal convergence would be an impossible exercise - complicated in the Community by the absence of clear competence in either area.

At p. 13.

B. Markesinis, "Why a code is not the best way to advance the cause of European legal unity" (1998) 5 European Review of Private Law 519, 521.

This is why Christian Joerges, reflecting on efforts by the European Commission to harmonise consumer protection law, deduces that reform is always best undertaken at national level :

C. Joerges, "The Europeanization of Private Law as a Rationalization Process and as a Contest of Disciplines - an Analysis of the Directive on Unfair Terms in Consumer Contracts" (1995) 3 European Review of Private Law 175, 183. On the difficulties, see N. Questiaux, "Implementing EC Law in France: The Role of the French Conseil d'Etat", in P. Craig and C. Harlow (eds), Lawmaking in the European Union, Kluwer International, 1998.

	The compulsory incorporation of "foreign" concepts... affects deeper structures of private law systems. Every legal concept, every dogmatic construction, every line of legal argument operates in pre-determined traditional contexts. Legislative acts of national parliaments remain rooted in these contexts, even when they are perceived as destructive interventions. Moreover, they are still subject to control by case law, which is formulated with the objective of maintaining coherence within private law. 
 
To summarise, conceptual differences between legal systems go much deeper than procedure, presentation of argument or methods of construction. They spring from different cultural traditions, reflecting "different justifications for the imposition of legal obligations and the creation of rights", which derive from "the moral and political foundations" of different societies. Law - and here the earlier example of welfare law is highly pertinent - reflects "accepted principles of distributive justice in a community". 

Citations from H. Collins, "European Private Law and the Cultural Identity of States" (1995) 3 European Review of Private Law 353, 356 and 360.

If concepts represent only the tip of the iceberg of law then, in thinking about law as a cultural artifact, we may need to enlarge our definition. David Nelken depicts  legal culture as a "multi-layered" concept which includes as well as legal norms, "salient features of legal insititutions and their infrastructure, social behaviour in creating, using and not using law, as well as legal consciousness in the legal professions and amongst the public". Lawrence Friedman's conception of law is still wider. He includes :

D. Nelken, "Disclosing/Invoking Legal Culture: An Introduction" (1995) 4 Social and Legal Studies 435, 438.

L. Friedman, "Legal Culture and Social Development" (1969) 4 Law and Society Review 29, 34.

	the values and attitudes which bind the system together, and which determine the place of the legal system in the culture of the society as a whole. What kind of training do the lawyers and judges have? What do people think of law? Do groups or individuals willingly go to court? For what purposes do people turn to lawyers; for what purposes do they make use of other officials and intermediaries? Is there respect for law, government, tradition? What is the relationship between class structure and the use or nonuse of legal institutions? What informal social controls exist in addition to or in place of formal ones? Who prefers what kind of controls, and why?... It is the legal culture, that is, the network of values and attitudes relating to law, which determines when and why and where people turn to law or government, or turn away. 

Here law and legal culture are presented as an onion, whose skins can be stripped away to reveal deeper layers. But whether these background values are described as making up the mentalité of the judge and lawyer or are incorporated into a "thick" definition of law is really immaterial. The point is that they need to be taken into consideration whenever harmonisation and convergence are in question. Harmonisation and convergence are complex issues,  not to be undertaken lightly. They may even be impossible goals. Attempts at harmonisation and convergence may, as argued in the next section, even if ultimately rejected by the host system, cause it substantial harm. 

	C. Law and Political Culture

Public law has particularly deep roots inside a cultural and political framework. It is difficult to see it at all in terms of a set of neutral, apolitical concepts and it has been defined as "a sophisticated form of political discourse ". Stripping away its skins reveals administrative law encased in constitutional law by which it is nourished and to which it owes its being. Constitutional law is in turn wrapped in, and permeated by, the prevailing political and governmental culture. It is these deeper values which help to determine, amongst other things, "when and why and where people turn to law or government". The mirror-image of Legrand's notion of mentalité is the terminology of "background theory" or "mindset" , in use amongst English public lawyers to describe the deep values which infuse constitutions and legal systems. Behind rules and concepts, the argument runs, lie habits, customs and ways of thought derived from historical experience. These inarticulated premisses infuse both constitutional law and judicial decision-making. 

M. Loughlin, Public Law and Political Theory, Clarendon, 1992, p. 4.

C. Harlow, "Changing the Mindset: The Place of Theory in English Administrative Law" (1994) 14 Oxford Journal of Legal Studies 419; P. Craig, Public Law and Democracy in the United Kingdom and the United States of America, Clarendon Press, 1990, p.3.

Even if globalisation is bringing European societies closer together, there remains a considerable cultural divergence. National and subnational culture is still strongly reflected in modes of government and in public administration. It is the state or region which still possesses the crucial role in ensuring continuity of effective government. It is national institutions which at present provide the central unit of governance within the Community. As Alan Dashwood puts it : 

A. Dashwood, "States in the European Union" (1998) 23 European Law Review 201, 213.

	The individual citizen... continues to experience government as, essentially, a Member State phenomenon... Rules touching the lives of individuals in all kinds of ways may no longer be home-produced; but the sometimes unwelcome consequences of the rules are exacted by officials with familiar accents and uniforms and owing their allegiance to political masters who are answerable through the national democratic process.

Nor are we yet ready to conform to some 

A. Claisse and M-C. Meininger, "Les fonctions publiques a l'epreuve de la modernisation", in L. Rouban and J. Ziller (eds), Special Issue: "Les Adminstrations en Europe: d'une Modernisation a l'Autre" (1995) 75 Revue francaise de droit administratif 345 (author's translation).

	European model or ideal type of public administration which the countries of the European Union are reaching towards, leave alone a model of modernisation. 

At one end of a theoretical spectrum we find the strong public service ethos central both to French public administration and administrative law ; at the other, the public management theories of Thatcherite Britain . There is admittedly much exchange of ideas; privatisation and agencies have proliferated, regulation is recognised across Europe as a useful technique for control of the private sector  and managerialism exerts a growing influence in national civil services . But recruitment, personnel, techniques of administration continue to vary  and the reality is still a plural Europe of many administrative cultures, valid in their own cultural context. The situation is further complicated where states possess strong local or regional traditions (as in Belgium) or in federal states (notably Germany), where implementation by regions cannot be dictated by a strong central government. At the level of service delivery variance remains very great; the reality here is a "Europe of many speeds" in which "levelling up" can be undertaken only slowly . Systems and processes which work in one Member State may be largely ineffectual in others and effectiveness in the real, grass roots, sense provides the strongest of arguments for pluralism. 

E. Malaret Garcia, "Public Service, Public Services, Public Functions, and Guarantees of the Rights of Citizens: Unchanging Needs in a Changed Context", in M. Freedland and S. Sciarra (eds), Public Services and Citizenship in European Law, Public and Labour Law Perspectives, Oxford University Press, 1998.

C. Hood, "A Public Management for All Seasons" (1991) 69 Public Administration 3.

G. Majone, "The rise of the regulatory state in Europe" (1994) 17 W. European Politics 77.

D. Farnham et al, New Public Managers in Europe, Basingstoke, Macmillan, 1996.

J. Burnham and M. Maor, "Converging Administrative Systems: Recruitment and Training in European Union Member States" (1995) 2 Journal of European Public Policy 185.

W. Kickert, Public Management and Administrative Reform in Western Europe, Edward Elgar, 1997.

Empirical research shows that national administrative attitudes and culture profoundly affect implementation of Community directives and policies; where these do not harmonise well with national administrative structures, they may be transposed and lip-service may be paid to them, but they will remain largely a dead letter. An empirical study made of the implementation of visa and asylum procedures, for example, revealed enormous divergence in implementation at national borders, where the inbred culture of immigration officers allowed traditional practices to continue unchecked . Enlargement is particularly relevant to this picture. In states emerging from the shadow of totalitarianism, the struggle against Stalinist bureaucracy has been acute and recruitment of sufficient capable personnel dedicated to the methods of western democratic capitalism is a special problem. Especially in environmental matters, there is talk of a prolonged period for conformity. The argument is not one for stasis. Convergence and harmonisation may still remain ultimate goals; implementation will not be achieved through working against the grain of national cultural traditions; backlash and anti-European sentiment are the more likely outcome.

S. Peers, Mind the Gap! Ineffective Member State Implementation of European Union Asylum Measures, London, Immigration Law Practitioners' Association and Refugee Council, 1998.

Legal as well as political and administrative systems have internal dynamics which give them their special character. John Bell identifies  four very different European administrative law traditions. The French-influenced systems of France, Belgium, Luxembourg, Italy, Portugal and Spain all acknowledge a classical demarcation line between civil and administrative jurisdictions. In the Germanic tradition the distinction is blurred with greater overlap and (though Bell does not say this) there is a marked emphasis on justiciable constitutional rights . Bell remarks of the common law countries of Britain and Ireland that they, in common with the Netherlands could be seen as possessing "a strong tradition of administrative non-law". The same is true of the Scandinavian family where, at least in Sweden and Denmark, judicial review takes second place to the ombudsman. Bell's criteria, as he would be the first to admit, merely scrape the surface; deeper examination would reveal further fissures between members of the same family. Moreover, the families under consideration are fairly closely related; this will not necessarily continue to be the case when the Community begins to accept further members from the ex-Eastern bloc or, in the South, Turkey. 

J. Bell, "Mechanisms for Cross-fertilisation of Administrative Law in Europe", in J. Beatson and T. Tridimas (eds), New Directions in European Public Law, Hart Publishing, 1998, pp. 149-151.

J. Schwarze, "The Convergence of the Administrative Laws of the European Union Member States" (1998) 4 European Public Law 191, 192.

Six of the present Member States place great emphasis on Parliaments in securing accountability; in the case of the United Kingdom, the telling phrase "political constitution"  is apposite. In English constitutional law, the central doctrine of parliamentary sovereignty can be seen to serve a dual purpose: on the one hand, it simply establishes the hierarchy of legal norms; on the other, it constitutes the fundamental principle of democratic legitimacy. Statute law is paramount because it is established, legitimated and underpinned by the system of parliamentary democracy by which we have come to be governed. The cultural resonance of the second idea in English law canot be underrated, any more than we can ignore the very different constitutional settlements of other European nations in which a separate administrative jurisdictional distinction has become entrenched and where in consequence the public/private divide has developed deep conceptual accretions which constitute the prevailing mindset . Again, take the rule of law principle, entrenched in the Treaty as a key principle of European constitutional settlements. The divergent terminology - rule of law, règne de la loi, rechtstaat, état de droit - all captures something of the spirit of the doctrine but is by no means synonomous. It is important too to note that formal or thin, and substantive or thick, interpretations of the concept exist side by side, often within the same legal culture . There is not one rule of law but many. 

J.A.G. Griffith, "The Political Constitution" (1979) 42 Modern Law Review 1.

J. Allison, "Cultural Divergence, the Separation of Powers and the Public/Private Divide" (1997) 9 European Review of Public Law 305 and A Continental Distinction in the Common Law, A Historical and Comparative Perspective on English Public Law, Clarendon Press, 2nd edn, 2000, advances a very similar argument to that of Legrand.

P. Craig, "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework" [1997] Public Law 467.

Bell's reference to a tradition of administrative non-law is also highly significant. Law - as Friedman signals  - is one of a number of pathways which link, and provide access to, a society's social and political systems. One of the key functions of administrative law is to provide the citizen with these pathways. In no society does law have a monopoly, but in some societies it is less highly prized than others. It has, for example, been said that "the idea that there could be any state activity which may not be challenged in court is alien to German law ". Other European societies, as Bell indicates, evince a distinct preference for alternative dispute-resolution, as in the robust Scandinavian ombudsman tradition. One cannot be sure what will result from blocking one of the pathways or widening another. Complaints may be diverted into a system where they cannot be appropriately handled or they may dry up altogether. Damage may then be caused to the political culture, ultimately impinging on a society's concept of citizenship. 

Above note 38.

W. Rufner, "Basic Elements of German Law on State Liability", in J. Bell and A.W. Bradley (eds), Governmental Liability, A Comparative Study, London, British Institute for Comparative Law, 1991, p. 252.

It is important to stress once more that this paper is not arguing either for stasis, cultural purity or isolationism. European societies have been influenced over the course of centuries by each others' cultures and, to quote Marc Galanter , "legal cultures, like languages, can absorb huge amounts of foreign material while preserving a distinctive structure and flavour". But when we talk of legal transplants as an irritant, we must realise that they may operate to destabilise legal and political institutions or change the balance of institutional power in a way which a given society finds unacceptable. When legal transplant impinges in this way on the wider political practices of a society, the democratic system is indeed perverted. The "open flank" argument is here applied through law.   

M. Galanter, "Predators and Parasites: Lawyer-Bashing and Civil Justice" (1994) 28 Georgia Law Review 633, 674.

 
III. EC Legal Culture 

	1. Creating a Constitution

At national level, public law operates in the framework of a working democracy. This is not the case in the EU where the institutional environment of the legal order is not securely embedded. The Community has never become a state, though it does possess some statal characteristics, nor have the Member States been able to decide whether they are moving towards or away from federation or whether the ultimate destination of Europe is "union" or, as this author prefers, "community" . The institutional structure is in a state of flux, revolving around inter-governmental conferences at which the Treaties undergo an irregular process of incremental change. More important, the structure of the Community fails properly to mirror the democratic beliefs and cultures which characterise the institutions of the Member States. It could be said to profess democracy without being democratic. 

J. Weiler, "The Community System: The Dual Character of Supranationalism" (1981) 1 Yearbook of European Law 267.

Although the fragility of the democratic structure and political institutions can today be seen as reflecting on the legitimacy of the EC legal order , at first the actual consequence for the Court of Justice was an unusual degree of autonomy. In contrast to national judicial organs, the ECJ became accustomed to operating in a political vacuum, secure from institutional competition and largely insulated from public opinion. A tight epistemic community of court, legal services and commentators  helped to foster easy acceptance of the ECJ as constitution-maker  - hardly a late twentieth-century conception - with little reflection as to whether any mandate for such a role existed. 

D. Wincott, "The Role of Law or the Rule of the Court of Justice?" (1995) 2 Journal of European Public Policy 583.

The phrase is borrowed from M. Shapiro, "Comparative Law and Comparative Politics" (1980) 53 S. California Law Review 537, 538. For the make up, see H. Schepel and R. Wesseling, "The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe" (1997) 3 European Law Journal 165.

F. Mancini, "The Making of a Constitution for Europe" (1989) 26 Common Market Law Review 595.

Even if it was not born into an established constitutional culture, the infant legal order was quick to develop one. At one and the same time the Court was engaged in manufacturing for itself a constitutional jurisdiction, transforming the Treaties into a Community constitution, concretising the rules of the new legal order and legitimating each in terms of the other . Integrationism - "a genetic code transmitted to the Court of Justice by the founding fathers " - emerged as a central feature of its mindset, while concern for "top down" reception of the infant Community legal order promoted the doctrine of supremacy. 

R. Dehousse, The European Court of Justice, Macmillan, 1998.

F. Mancini and D. Keeling, "Democracy and the European Court of Justice" (1994) 57 Modern Law Review 175, 186. On the role of the Court in integration, see J. Weiler, "A Quiet Revolution - The European Court of Justice and its Interlocutors" (1994) Comparative Political Studies 510.

A significant step in the evolution of a constitutional culture was the conceptualisation of the Treaties as the "basic constitutional charter" of a "Community based on the rule of law"  - at best a contestable claim.

R.Cooter and D. Schmidtchen, "Introduction", in Special Issue: Conference on the Constitutional Law and Economics of the European Union (1996) 16 International Review of Law and Economics 277.

The plural construction of the Community was less often noted, nor did the Court's confident judgements tend to reflect uncertainty surrounding the ultimate constitutional destination. For Member States and national jurisdictions, the effect was restrictive and exclusive :

I. Maher, "Community Law in the National Legal Order: A Systems Analysis" (1998) 36 Journal of Common Market Studies 217, 244. See also B. de Witte, "The Nature of the Legal Order", in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford, 1999, pp. 196-8.

	[B]y declaring the supremacy of Community law on the basis of a teleological reading of the Treaties and without reference to the constitutions of the Member States, the European Court saw the question of the scope of the competence of this new legal order as one which could be answered exclusively by reference to the Treaties, of which it was the sole, authoritative interpreter...

Assuming that the Treaties are accepted to be constitutional in character , then its origins have led to an unusually one-sided constitution. At its heart we find the ideology of market crucial to the conception, first of the common market, and later of the European Economic Community which supplanted it. As Seidel puts it, it is :

Further discussed by T. Schilling, "The Autonomy of the Community Legal Order: An Analysis of Possible Foundations" (1996) 37 Harvard International Law Journal 389; P. Eleftheriadis, "Aspects of European Constitutionalism" (1996) 21 European Law Review 32; K. Armstrong, "Theorizing the Legal Dimension of European Integration" (1998) 36 Journal of Common Market Studies 155, 161; B. de Witte, "International Agreement or European Constitution?", in J. Winter et al (eds), Reforming the Treaty on European Union - The Legal Debate, Kluwer Law Int, 1996.

M. Seidel, "Constitutional Aspects of the Economic and Monetary Union", in F. Snyder (ed), Constitutional Dimensions of European Economic Integration, Kluwer, 1996, p. 476 (emphasis mine). See also M. Streit and W. Mussler, "The Economic Constitution of the European Community: "From Rome to Maastricht"", ibid.

	The Treaty [which] obligates Member States to ensure their economies are organised and run in accordance with the principles of the market and competition. 

The move to constitutionalise the Treaties has thus been driven equally by the desire to promote deeper integration; to entrench economic values at constitutional level, thus rendering them incontrovertible; and by a wish to legitimate free market economic doctrine as a value of "constitutional" rank. In this the influence of German ordo-liberal doctrine has been very marked . As John Gray remarks :

D. Chalmers, "The Single Market: From Prima Donna to Journeyman", in J. Shaw and G. More (eds) New Legal Dynamics of European Union, Clarendon Press, 1995, pp.56-66. And see E-J. von Mestmacker, "On the Legitimacy of European Law" (1994) 58 RabelsZ 617.

J. Gray, False Dawn, The Delusions of Global Capitalism, Granta Books, 1998, p. 9.

	The late-twentieth-century free market experiment is an attempt to legitimate through democratic institutions severe limits on the scope and content of democratic control over economic life. 

What opponents fear is the entrenchment of a political credo at a level beyond political reach. Hostility thus extends beyond the substance to procedure, here the claims of constitutionality and of legal supremacy. 

Buttressing the economic constitution stand the "four freedoms", which possess for some the mantra and status of the civic and political rights often found in constitutional bills of rights. The early priority given to economic, commercial and property rights was hardly surprising, but their dominance helped to point up the absence of formal protection for civil and political rights in the EC "constitution". Failure to recognise human rights more widely emerged as a significant ground of conflict with the German Constitutional Court . It also created the potential for significant argument over values, when economic rights were seen as taking precedence over other rights valued at least as highly by national communities. Value pluralism and national identity were moving on to the legal agenda (Below, Section IV).

J. Kokott, "Report on Germany", in A-M. Slaughter, A. Stone Sweet, J. Weiler (eds), The European Courts and National Courts - Doctrine and Jurisprudence, Hart Publishing, 1998, pp. 81-102.

	2. Supremacy, Equality and Effectiveness

The foundations of the EC legal order rest in the Treaty, more especially the rule of law ideal embedded in the Preamble. This Treaty status of "high constitutional principle" provides a theoretical legitimation for the whole judge-made construction of EC law; in addition, EC Art 220 (ex 164) establishes the Court as guardian of the Treaty, its duty being to see the law observed. 

In line with the requirements and liberal ideology of the EC constitutional culture, the rule of law principle early acquired an unashamedly formalist and procedural interpretation - the classic liberal model. Cotterell reminds us of the cultural link between this "thin" interpretation of the rule of law principle and capitalist societies , in which category the Community stands. The "thin" version of the rule of law requires a legal order with fixed and stable general principles; formal rights of access to courts for the resolution of disputes are also necessary. Both have been provided and flourished. 

R. Cotterell, Law's Community. Legal Theory in Sociological Perspective, Clarendon, 1995, pp. 164-177, discussing F. Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society, Berg, 1986. This is not a novel argument of course.

A further tenet of the formal rule of law principle is the doctrine of equality before the law. Here we have the kernel of the "level playing field" of EC legal rights. Equality as a facet of the rule of law legitimates the EC legal order. The Court itself has argued that :

Report of the Court of Justice (and Court of First Instance) on Certain Aspects of the Application of the Treaty on European Union, Luxembourg, May 1995, para.4.

	The success of Community law in embedding itself so thoroughly in the legal life of the Member States is due to its having been perceived, interpreted and applied by the nationals, the administrations and the courts and tribunals of all the Member States as a uniform body of rules upon which individuals may rely in their national courts.

Formal equality pays no heed to outcomes. No attempt need be made to clothe the bare bones of the concept in reality. Friedman's wider, socio-legal definition of law  and his admonition to consider the use made of the legal system and the purposes for which people turn to lawyers can be ignored. Not only does the formal version of the rule of law flourish in capitalist societies but it is particularly attractive to economic actors. Because of : 

Above note 38.

M. Shapiro, "The European Court of Justice", in P. Craig and G. de Burca, The Evolution of EU Law, Oxford, 1999, pp. 328, 330. See also H. Schermers, "The Role of the European Court of Justice in the Free Movement of Goods", in T. Sandalow and E. Stein, Courts and Free Markets, Clarendon Press, 1982.

	the stability and predictability that legal-political, as opposed to purely political, institutions have to offer... Legalization, and thus judicialization, fits an 'economic community' particularly well.

Galanter makes the same point when he observes how the dominance of American multi-national commercial concerns has created a pressure to judicialisation in Europe . 

M. Galanter, "Predators and Parasites", above note 59.

Ami Barav lists  as fundamental doctrines of the EC legal order: supremacy, irreversibility, direct applicability and the binding force of EC law, all of which are aspects of legal supremacy. Supremacy is the fundamental doctrine of EC law, essential to integration. Supremacy is buttressed by the ingenious use made by the ECJ of the simple obligation imposed on Member States by EC Art 10 (ex 5) "to take all appropriate measures" to fulfil their Treaty obligations. This has been transmuted into a novel legal principle of fidelity . A "command and control" idea of law is being set in place and with it a connection between the rule of law and the power of command (sovereignty). 

A. Barav, "Ominpotent Courts", in D. Curtin and T. Heukels (eds), Institutional Dynamics of European Integration, Martinus Nijhoff, 1994, vol II, p. 268. See similarly, P. Pescatore, "Aspects judiciaires de l'acquis communautaire" (1981) 17 Revue trimestrielle de droit europeen 617, 649.

See M. Blanquet, "Acceptation et Consecration d'un Concept Communautaire: La Fidelite Communautaire", in S. Poillot-Peruzzetto (ed), Vers une culture juridique europeenne?, Montchrestien, 1998.

Command is carried into the doctrine of "effectiveness", another notion to feature centrally in the case law of the ECJ. The link between the principles is spelt out in an extraordinary extra-judicial statement by the ECJ :

The Future of the Judicial System of the European Union, (Proposals and Reflections), 1999.

	Any weakening, even if only potential, of the uniform application and interpretation of Community law throughout the Union would be liable to give rise to distortions of competition and discrimination between economic operators, thus jeopardising equality of opportunity between economic operators and consequently the proper functioning of the internal market.
	
An "effective" judicial system starts with the articulation of legal principle. Principles must next be transposed by national courts. In building the new legal order, the ECJ borrowed heavily from the conceptual vocabulary of national legal systems: e.g., from France, the concept of principes généraux with constitutional weight; from Germany, the proportionality principle; from England the audi alteram partem principle; and so on . In borrowing, the ECJ looked naturally for solutions 

T. Koopmans, "The birth of European law at the cross-roads of legal traditions" (1991) American Journal of Comparative Law 493. Emergent general principles of EC law are explored more fully by J. Schwarze, European Administrative Law, Sweet and Maxwell, 1992 (English edition) and J. Schwarze (ed.) Administrative Law under European Influence, Sweet & Maxwell/Nomos, 1996.

J. Schwarze, “European Administrative Law”,  p. 17.

	most compatible with the legal order of Community law and that most closely correspond to the functional capacity and the goals of the Community.

Awkward problems of "horizontal divergence" were then created when a principle borrowed from a national system or compounded of elements from several was re-introduced in a reformulation devised by the ECJ. The impact of the "superior" legal order on national legal systems might then be detrimental and contested. The contribution of national legal systems to EC law has been by no means equal. Some national systems may thus find greater difficulty in adaptation than others. Though France had a head-start, the Six came from the same or similar legal families. Diversity increased sharply in 1972, when the accession of the UK and Ireland for the first time introduced the common law family and the entry of Denmark brought in the Scandinavian family. If Pierre Legrand is right , the mindset of common law judges would introduce a particular problem. That new Member States are deemed to accept on accession an acquis created before their arrival leads to further difficulties. Heavy use of preliminary reference procedure means that differential patterns of reference  may influence a national contribution. To attempt “convergence” by judicial process is, in short, always a complex and essentially haphazard process of “approximation”. It satisfies the formal equality requirement of the rule of law principle but cannot guarantee real equality or effectiveness. 

Above, note 30.

For statistics, see A. Stone Sweet and T. Brunell, "The European Courts and National Courts: A Statistical Analysis of Preliminary References, 1961-95" (1998) 5 Journal of European Public Policy 66.

Because effectiveness does not stop with transposition; implementation is also necessary, creating a need for enforceable remedies. The case begins to be made for a Community-wide system of judicial remedies, obtainable from all national courts. In the well-known case of Factortame, where the applicants applied for interim relief to English courts, the ECJ argued that :

Case C213/89 R v Secretary of State for Transport ex p Factortame (No 3) [1990] ECR I-2433.

	[T]he full effectiveness of Community law would be... impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgement to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.

In the controversial Francovich case, the Court justified the creation of a new remedy in damages, unauthorised by the Treaties, in identical language  :

Joined Cases 6, 9/90 Francovich and Bonafaci v Italy [1991] ECR I-5357.

	The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible. 

But no system of judicial remedies is complete in itself. Neither Court nor Commission is :

F. Snyder, "The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques" (1993) 56 Modern Law Review 19, 52.

	sufficient alone to ensure the effectiveness of Community law in the broader social sense, in particular in so far as it entails the commitment of citizens, popular participation and political legitimacy. For this purpose, it may be suggested, other institutions, processes, tools and techniques are also required.

In other words, implementation depends on national administrative authorities, a dependence likely, as argued in an earlier section, to produce very variable outcomes. 

IV. Procedure as Rights

The early case law of the ECJ recognised national procedural autonomy. The Saarland ruling stated that :

Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, 1997. See also Case 158/80 Rewe-Handellgesellschaft Nord mbll and another v Hauptzollamt Kiel [1981] ECR 1805.

	in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the protection of the rights which citizens have from the direct effect of Community law. 

This principle was subject only to the proviso that procedural rules must not (i) be less favourable than those governing similar domestic actions nor (ii) render virtually impossible or excessively difficult the exercise of rights conferred by Community law. 

Gradually, this autonomy was eroded. A key ruling was Johnston , where the ECJ held that a statutory "ouster clause", which required an employment tribunal to treat a ministerial certificate of "public interest immunity" as conclusive, must cede to the "general principle of effective judicial protection". Factortame and Francovich mark further key stages in the process of "constitutionalisation", whereby EC law can penetrate with impunity the area of legal procedure previously supposed to be reserved for the national legal systems. By the 1990s, the procedural rights of defendants were being described as "principles of higher rank which prevail over all other rules" and commentators were speaking of the virtual erosion of the rule of national procedural autonomy .

Case 222/84 Johnston v Royal Ulster Constabulary [1986] ECR 1651. See also Case C- 208/90 Emmott v Minister for Social Welfare [1991] ECR I-2925.

K. Lenaerts and J. Vanhamme, "Procedural Rights of Private Parties in the Community Administrative Process" (1997) 34 Common Market Law Review 531; R. Crauford Smith, "Remedies for Breaches of EU Law in National Courts: Legal Variation and Selection", in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford, 1998.

Procedures can also permeate national systems in the guise of human rights law. ECHR Arts 5, 6 and 13 all guarantee access to justice  and Johnston merely mirrors in EC law the right of access to court recognised and protected by ECHR Art 6(1). It is fair to say that ECHR Article 6(1) has been generously interpreted; indeed, a case law has developed around it which would certainly not have been foreseen by the original signatories . The degree of judicially ordained procedural convergence has been so great as to induce the complaint that Art 6(1) risks bringing within the ambit of the ECHR nearly the whole of administrative justice . In the name of "levelling up", the extension of ECHR Art 6(1) to the standard fare of administrative justice is imperilling established and respected administrative adjudicatory systems . 

ECHR Art 5 deals with pre-trial process, Art 13 demands an "effective remedy" for infringements of ECHR rights, Art 6 requires a fair and public hearing by an independent and impartial tribunal in the determination of a person's civil rights and obligations.

D. Harris, M O'Boyle and C. Warbrick, Law of the European Convention on Human Rights, Butterworths, 1995, ch. 6.

R. Abraham, "Les principes généraux de la protection juridictionnelle administrative en Europe: L'influence des jurisprudences européennes" (1997) 9 European Public Law Review 577, 582. A classic example is C 222/86 UNECTEF v Heylens [1987] ECR 4097, discussed below.

e.g., the Dutch procedure of Crown appeal Benthem v Netherlands (1985) 8 EHHR 1 noted Verheij, "Dutch administrative law after Bethem's case" [1990] Public Law 23. The practice of allowing members of administrative formations of a Conseil d'Etat to participate in adjudication Procola v Luxembourg (1996) 22 EHRR 193, noted R. Drago, "Un nouveau juge administratif", in Ecrits en hommage à Jean Foyer, Presses univeritaires de France, pp. 454-5. English habeas corpus procedure in Vilrajah v UK (1992) 14 EHRR 248 and judicial review procedure in Lustig-Prean and others v UK (judgement of 29 September 1999).

The TEU contained a loose commitment of tto respect "human rights and fundamental freedoms". This was replaced in the Treaty of Amsterdam with a formulation (ToA Art 6) requiring the EU to: 

	respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of constitutional law. 

A European Charter of Rights can only accelerate the process of convergence. Article 47 of the Draft Charter  parallels ECHR Art 6(1), while Art 41 creates a "Right to Good Administration", which includes in para 2 the right to a hearing and reasoned decisions. The ECJ technique of constitutionalising human rights principles, directly or indirectly borrowed from the ECHR, is thus legitimated. 

Above, note 7.

At first sight, the extension of human rights into relations between citizens and the administration seems a wholly benign development. If the universality of human rights is accepted as axiomatic, then their extension and co-ordination must surely be a "levelling up". This is, however, a dangerous simplification. An impugned procedure may not be inferior; it may simply be different. There is, for example, no absolute advantage of adversarial over inquisitorial procedure; one is not inevitably more independent or inherently less arbitrary than the other; each can operate fairly . Yet by stressing the independence criterion, the Court of Human Rights may prioritise the paradigm of adversarial justice, in which an impartial judge mediates between opposing parties. Again, some societies have strong cultures of "non-law", a preference which may be reflected in their procedures. To rule out ombudsmen as a remedy because their recommendations are not technically binding alters the very concept of justice in a society. As Ronny Abraham argues, cultural uniformity precludes experiment and creates a real danger of stultification. He sees too a threat to minority cultures in the :

M. Damaska, The Faces of Justice and State Authority, Yale University Press, 1986. And see H. Lindblom, "Harmony of the Legal Spheres" (1997) 5 European Review of Private Law 11, 20.

Abraham, "Les principes généraux", above note 92, p. 582.

	condemnation of minority institutions and procedures, first considered curious, then abnormal, finally suspect in terms of the principles of due process. It is not because an institution or rule is to be found only in one, or in a small number of countries, that it is to be adjudged bad; the majority is not always right.

Note how Abraham, like Friedman, links procedures with culture. 

When EC law clashes with national constitutional law culture clashes may be particularly acute because of the sanctity which nations (rightly) attach to their constitutions, often categorised as "higher" law. In the celebrated case of SPUC v Grogan , a "right to life", rated as "fundamental" and protected by a prohibition on abortion in the Irish Constitution, came into conflict with the economic freedom of access to services in the EC Treaty. Even though the ECJ managed to avoid an outright clash, the case came under fire because of the clash of competing norms . 

Case C-159/90 SPUC v Grogan [1991] 3 Common Market Law Review 849J. The Court ruled that an information service on abortion facilities was a "service" but that the students' union involved did not provide a service either directly or indirectly through funding.

From the torrent of comment, see J. Coppel and A. O'Neill, "The European Court of Justice: Taking Rights Seriously" (1992) 12 Legal Studies 227.

Cases which seemingly raise quite simple questions of procedure may in practice involve significant clashes of value. Factortame overturned the doctrine of parliamentary sovereignty, keystone of the British constitution . In Peterbroeck and van Schijndel , the question was whether a national judge, faced with a situation in which EC law may be applicable but has not been pleaded, must raise the point of his own motion. Behind this technical question lay a deep constitutional question concerning the nature of adjudication in French-style legal systems . In thoughtful and considered opinions in these cases, A-G Jacobs set out the case for self-restraint :

P. Craig, "Report on the United Kingdom" in A-M Slaughter, A. Stone Sweet, J. Weiler (eds), The European Courts and National Courts - Doctrine and Jurisprudence, Hart Publishing, 1998, p.196.

Case C 312/93 Peterbroeck, Van Campenhout et Cie v Belgium [1995] ECR I-4599. Here the Court rejected the advice of the Advocate-General, rulng that the Cour d'Appel must raise a point of EC law of its own motion where appeal is the first opportunity on which the point can be raised. In Joined Cases C430, 431/93 van Schijndel & van Veren v Stichting Pensioenfonds voor Fysiotherapeuten [1995] I-4705, a similar action failed on the narrow ground that a point of EC law based on new facts cannot be raised on appeal.

On the consequences for the French legal system, see J. Delicostopoulos "L'Influence du droit europeen quant aux pouvoirs du juge judiciare national sur le fait et le droit" (1997) 6 Justices 117.

van Schijndel, paras., 24, 25, 27.

	[I]f the view were taken that national procedural rules must always yield to Community law, that would... unduly subvert established principles underlying the legal systems of the Member States. It would go further than is necessary for effective judicial protection. It could be regarded as infringing the principle of proportionality and, in a broad sense, the principle of subsidiarity, which reflects precisely the balance which the Court has sought to attain in this area for many years. It would also give rise to widespread anomalies, since the effect would be to afford greater protection to rights which are not, by virtue of being Community rights, inherently of greater importance than rights recognized by national law. 

To resolve such clashes merely by reference to the operation of the supremacy doctrine, a short cut to a pre-ordained result, is deeply problematic; it resolves the problem superficially but not at a deep level. According to John Gray, rights are :

J. Gray, False Dawn, The Delusions of Global Capitalism, Granta Books, 1998, p.109. See also A. Bayefsky, "Cultural Sovereignty, Relativism and International Human Rights: New Excuses for Old Strategies" (1996) 9 Ratio Juris 42.

	never the bottom line in moral or political theory or practice. They are conclusions, end-results of long chains of reasoning from commonly accepted premises. Rights have little authority or content in the absence of a common ethical life. They are conventions that are durable only when they express a moral consensus. When ethical disagreement is deep and wide an appeal to rights cannot resolve it. Indeed, it may make such conflict dangerously unmanageable... Looking to rights to arbitrate deep conflicts - rather than seeking to moderate them through the compromises of politics - is a recipe for a low-intensity civil war.

This is difficult stuff for lawyers, trained to view the legal system as a rational ordering or ranking of legal principle, and naturally inclined towards the conception of judicial decision as the "single right answer", unchallengeable save by appeal . But to pretend - as lawyers so often do - that rights are uncontestable is to divest them of their deep content and meaning; to substitute a thin for a thick, a legal for a political, definition of rights. The purpose and effect of articulating judgements about values in the language of rights is, by endowing them with the sanctity of law, to transfer the power of decision from legislatures to courts. When this process takes place in the EC legal system, the doctrine of legal supremacy operates so as to remove the power of decision from national to European level, entrenching the rights in question at a level beyond political reach. This is Wincottt’s “perversion of democracy” duplicated.  

R. Dworkin, Taking Rights Seriously, Duckworth, 1967 and Law's Empire, Fontana, 1986.

V. Conclusions

The case for pluralism advanced in this paper forms part of a broad political debate about governance in the Community: integrationism versus subsidiarity. Integrationism was once seen as something of a loyalty test; today pluralism is squarely on the political agenda. We are becoming accustomed to the concept of subsidiarity introduced by Art 3(b) of the TEU and (more gingerly) to the "multi-speed Europe" and "variable geometry" of the ToA. Treaty status is making the ideas respectable. If the Community is to embrace within its boundaries a new swathe of entrants with different cultural traditions, political expectations and capabilities, acceptance of diversity will become a necessity. It will be essential to treat the Community as a confederal association, weighted to the bottom level . Co-operative political activity will be based on strong existing national and sub-national structures which legitimate it.

P. Eleftheriadis, "Begging the Constitutional Question" (1998) 36 Journal of Common Market Studies 255.

The purpose of this chapter is to link this wide, general debate about constitutions and governance to a narrower debate, conducted mainly between lawyers, about harmonisation and convergence of legal systems. In so doing, it has questioned the use of law as an instrument of political integration, arguing that legal integration in a political vacuum tilts the balance of power from government and legislature unacceptably far towards the judiciary, modifying in the process relationships between the EU and Member States (the double perversion of democracy.) Implicitly, the chapter also questions law's integrative force. Paradoxically, legal integration may be disintegrative. Essentially parasitic in nature, the EC legal order balances precariously on the props of national legal orders. Clashes between the orders which cause repercussions on national constitutions will in time rebound directly on the Community. 

Again, the chapter has attacked both the vision of a "level playing field" of procedural rights and the concept of "levelling up" as essentially simplistic and misleading ideas. The realities which underlie the legal doctrines of equality and efficiency  demand a more complex and sophisticated argument about the commensurability of rights and values. Arguing that legal systems are culturally linked, the chapter notices differing attitudes to legal remedy and judicialisation. The first division of competencies between national legal orders and the EC was sensitive to these differences but a blurring of the boundary has been noted. Border raids in the name of integrationism have led to expanded competence for EC law and its progenitor, the ECJ. 
 
The ECJ was designed as an international tribunal with a strictly limited remit but it made short work of this restricted mandate. It soon moved to establish the supremacy of the law which it administered and had ruled itself alone competent to administer, while alongside it fitted itself out with a toolkit of powerful remedies, used to bind the legal orders of the Member States. A model of law emerged more formalist and more coercive than the national legal orders of any Member State would offer and arguably ill-adapted to the non-statal constitutional context in which it has to operate. The supremacy principle represents the installation at the heart of a postmodern "Community of Nations" of a Kelsenist conception of legal sovereignty. Pooled sovereignty ought to imply the acknowledgement of "co-ordinately valid legal systems"  - the EC legal system as one among equals. 

N. MacCormick, "Liberalism, Nationalism and the Post-sovereign State", in R. Bellamy and D. Castiglione (eds) Constitutionalism in Transformation: European and Theoretical Perspectives, Blackwells, 1996.

But if it is proving difficult to move far from the concept of sovereignty in the political arena, then it is harder still to eliminate it inside the legal order. The theory of law as an instrument of command and coercion has qualities of endurance; the tiger is not dead but sleeps. The rush to "constitutionalise" human rights and to extrapolate general constitutional principles has permitted the ECJ to buy into the classic hierarchy of legal norms. Rights, in Dworkin's inimitable phrase, are "trumps" through which courts gain power and legitimate their own claim to sovereignty. And sovereignty is very much the business of courts. 

A plural legal framework not only implies respect for national legal orders but also a non-hierarchical method of mediating conflict. Writing in a federal context, Fritz Scharpf spells out the consequences of a plural adjudicative regime :

F. Scharpf, "Community and autonomy: multi-level policy-making in the European Union" (1994) 1 Journal of European Public Policy 219, 225.

	[T]he recognition of a bipolar constitutional order prevents the one-sided orientation of judicial review towards the enumerated powers of the central government, which is otherwise characteristic of federal states. It requires the court to balance competing jurisdictional claims with a view not only to their substantive justification, but also to the manner in which the powers are exercised. The criterion is mutual compatibility, and the characteristic outcome is not the displacement of one jurisdiction by the other, but the obligation of both to choose mutually acceptable means when performing the proper functions of government at each level. 

The initial intention for the EC was of non-confrontational, non-hierarchical, co-operative judicial machinery; under EC Art 177 (now 234), the ECJ enjoyed a consultative function, advising in case of doubt on the meaning of EC law. Later, as the Court's integrationist culture and mindset hardened, a distorted vision surfaced of a "quasi-federal instrument for reviewing the compatibility of national laws with Community law" . The erstwhile adviser had stepped into the untenable position of partisan umpire - Scharpf's asymmetrical monster - and had into the bargain acquired enforcement powers. There was over-use of a reference procedure which had shown itself insensitive to the balancing exercises for which it came to be used . There is need for a true "judicial dialogue", with an opening for national courts to indicate potential impact of decisions on the national legal system. This would force them to articulate their reasoning in the language of that system, reinforcing domestic accountability by submitting judgements to scrutiny in the national arena where their impact needs to be weighed and tested. The ground rule of national procedural autonomy needs to be reinstated, with departures from that rule justified by reference to the twin principles of proportionality and subsidiarity. 

F. Mancini and D. Keeling, "Democracy and the European Court of Justice", above note 62 at 184.

A point developed by T. de la Mare, "Article 177 and Legal Integration", in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford University Press, 1998, at 227.

The argument of this paper has been presented somewhat starkly. There is room for a median position between the extreme poles of integrationism and unregenerate pluralism. There are today signs that the ECJ is beginning to understand this. Recent case law is more tentative, more thoughtful and more sensitive to national sensibilities. The Court has recently suggested too that national courts should "apply Community law themselves, and not... resort too hastily to the solution afforded by a reference to the Court of Justice" . These could be signs of a new judicial mindset which would welcome legal diversity manifested in "co-ordinately valid legal systems". This welcome development in no way undercuts the argumentation of this chapter. Case law can change. It is a pluralist mindset which needs to be permanently installed at Luxembourg.

Court of Justice, "The Future of the Judicial System”, above note 78, p. 24. Contrast C. Barnard and E. Sharpston, "The Changing Face of Article 177 References" (1997) 34 Common Market Law Review 1113; D. O'Keeffe, "Is the Spirit of Article 177 under Attack? Preliminary References and Admissibility" (1998) 23 European Law Review 509.

Essentially the case for harmonised judicial protection rests on theories of the market 

T. Jolowicz, "Introduction", in H. Storme (ed), Approximation of Judiciary Law in the European Union, Kluwer and Martinus Nijhoff, 1994, p. xiii.

	If a market is to flourish, disputes arising out of business conducted in the market must be resolved consistently with one another, and that requires more than a uniform substantive law. Distortion is bound to occur if the mode of litigation, with all that that implies both by way of procedural techniques and by way of their implications for costs, delays, appeals, enforcement of judgements and so on, varies substantially from one place to another. The idea of a single 'internal market' requires for its complete realisation a single system for the judicial resolution of disputes.

Surely this is a thin argument to set against the deep values of heritage, legal culture and constitutional legitimacy?

	Carol Harlow,
	Professor of Law,
	London School of Economics and Political Science*.

* I have had the help of many colleagues in arriving at the final version of this paper, presented at seminars at the University of Florence, at LSE, at Bristol University and at the University of Aberdeen. I should like to thank all my critics. Special thanks go to Keith Vincent, my assiduous researcher and colleagues Damian Chalmers, Pavlos Eleftheriadis, John Griffith, Imelda Maher, James Penner and Richard Rawlings for detailed comments.