. 10
( 14)


A case in point was a controversy surrounding the WTO Government
Procurement Agreement 1994 (GPA). This agreement relates to the award of
government contracts to foreign suppliers. Under article 23 of the GPA, and
overlapping with GATT, exceptions to free trade apply when it may be neces-
sary for a nation-state to protect public morals, human, animal or plant life or
health or intellectual property, or products or services of handicapped persons,
of philanthropic institutions or of prison labour. Massachusetts, in 1996,
enacted legislation ˜limiting state agencies from signing new contracts or
renewals of contracts with companies doing business with or in Myanmar™.
Japan and the EU objected to the Massachusetts legislation on the basis that it
discriminated against those states for trading freely with countries with poor
human rights records. EU and US diplomacy resulted in an in-principle re¬ne-
ment of policy in relation to economic sanctions targeted against the perpetra-
tors of the human rights breaches.146 The WTO has not yet had to deal with such
issues directly in its jurisprudence.
Refuge for trade discrimination can also be sought under the article XXI
Security Exceptions head to use international trade as a weapon against ˜bad
guys™. The US has resorted to this doctrine at least three times in recent history,
directed against Fidel Castro, Iranian and Libyan terrorism, and ˜foreign
drug kingpins™.147 In the absence of a UN Security Council resolution, no such
power may exist to sanction China for breaches of human rights, now that it
is a member of the WTO. There is arguably no national security interest in
o¬shore human rights abuses, and the possibility of economic sanctions as a
means of international law enforcement measures is arguably impeded by
GATT obligations.148
In the absence of GATT tests of the interaction of human rights and free-trade
law, ecological analogies must su¬ce.149 A related ecological jurisprudence
exists in the WTO concerning trade discrimination based upon ˜product-
related™ requirements (namely what product is required) and ˜process-related™

See Steve Charnovitz, ˜The Moral Exception in Trade Policy™ (1998) 38 Virginia Journal of
International Trade Law 689“745, 695“9.
See Christopher McCrudden, ˜International Economic Law and the Pursuit of Human Rights:
A Framework for Discussion of the Legality of “Selective Purchasing” Laws Under the WTO
Government Procurement Agreement™ (1999) 2 Journal of International Economic Law 3“48,
6. See too, generally, Brooklyn Journal of International Law, ˜Symposium: The Universal
Declaration of Human Rights at 50 and the Challenge of Global Markets™ (1999) 25 Brooklyn
Journal of International Law 1“183.
Raj Bhala, ˜Fighting Bad Guys with International Trade Law™ (1997) 31 U.C. Davis Law Review
1“122, 3.
See Carlos Manuel Vázquez, ˜Trade Sanctions and Human Rights “ Past, Present and Future™
(2003) 6 Journal of International Economic Law 797“839, 804“5. Ibid., 809, 812.
246 A Wholly Mammon Empire?

requirements (how the product is produced). The famous Tuna/Dolphin cases
considered this distinction.150 GATT panels held that US bans on imports of tuna
caught with drift-nets harmful to dolphins were unlawful under article III of
GATT (relating to ˜National Treatment on Internal Taxation and Regulation™).
Only the characteristics of the products were to be taken into account, not the
production processes. Such process-related logic suggests the illegality of dis-
criminating against imports of products created with child labour.
The Shrimp/Turtle case,151 in which the US successfully obtained dispen-
sation to impose bans on the importation of shrimp caught using turtle-
unfriendly methods, was successful only because the US used best endeavours
to secure multilateral agreement on turtle-friendly techniques for catching
shrimp. This process lends itself to dominant powers like the US embracing
environmental concerns to advance protection of their own economies.152
Probably more of a coincidence than a conspiracy, capitalism and big business
seem to cope relatively well with ecological regimes. Smaller businesses and
developing economies often cannot ¬nancially a¬ord to comply with human
rights and environmental standards.
The emphasis on free trade by reducing tari¬s is fraught with problems at the
level of authority. Global free trade has not demonstrated itself to be an ethic
superior to state moral and environmental standards.153 Free trade can also
o¬end the national kinship principle by which one may prefer one™s national
products. The logic of the international free market not only seeks to displace
uncompetitive domestic industries (with some success) but it also overrides the
culture of domestic industries such as French ¬lmmaking. It is di¬cult to
imagine these universalist political aspirations of free trade becoming morally
attractive to domestic populations. Factory closures in particular industries
such as textiles, clothing and footwear (because goods can be produced more
cheaply, for example, in Third World sweatshops)154 can scarcely expect to be
greeted cheerily by employees in more-developed countries. In many cases
countries, particularly the US, simply refuse to open their markets to certain
products and certain countries, to avoid such vote-losing policies.
Despite these myriad tensions, international trade law may be said to be
undergoing a ˜constitutionalisation™ by virtue of the judicial interpretation that
is occurring. Traditional concerns of constitutional law are manifest in WTO
law, such as the review of power amongst Member States, centralisation of
dispute resolution, the borrowing of federal constitutional doctrines such as

Tuna/Dolphin I, 30 ILM 1594 (1991); Tuna/Dolphin II, 33 ILM 839 (1994).
United States “ Import Prohibition of Certain Shrimp and Shrimp Products, 38 ILM 118 (1999).
See Donald McRae, ˜Trade and the Environment: Competition, Cooperation or Confusion?™
(2003) 41 Alberta Law Review 745“60. See Singer, One World, pp. 71“4.
Developing countries then su¬er the dilemma of increased income at the expense of fewer
worker protections: see e.g. C©sar A. Rodríguez-Garavito, ˜Nike™s Law™, in Santos and
Rodríguez-Garavito (eds.), Law and Globalization from Below: Toward a Cosmopolitan Legality
(Cambridge: Cambridge University Press, 2005).
247 The return of universalist law

proportionality and the competence to hear matters relating to traditionally
domestic a¬airs such as health. Certainly the jurisprudence of the WTO re¬‚ects
more than just international law. The WTO jurisdiction is one of several com-
peting jurisdictions within a shifting, expanding legal order with an eclectic mix
of doctrines from diverse legal systems.155
At the moment, human rights and associated ecological rights appear to take
a back seat to the universalist norms of economic prosperity believed to be
served by free trade. It may be possible in this respect to think of an emerging
paradigm of ˜trade-related, market-friendly human rights™. Those human rights
conducive to trade (such as the right to property and equality before the
markets) may be more likely to receive widespread enforcement than are other
human rights.156

10.6 Globalist jurisprudence, God and Mammon
In this chapter, a number of jurisdictions have been encountered which
compete with other jurisdictions. Nation-states have had their spheres of con-
tainable disruption challenged. They have been forced to compete with juris-
dictions of an emerging world society amongst other societies such as the WTO,
and human rights bodies such as the UN Committee on Human Rights. With
these new jurisdictions, the individual has alternatives to the nation-state and
becomes a subject of what had been the exclusive state preserve of public inter-
national law.
There are parallels between the medieval papacy and its universalist
Christendom, compared with the natural rights sought to be guaranteed by the
UN under the banner of liberal free-trade democracy and human rights. As
observed by Eugen Rosenstock-Huessy, ˜[b]efore the Papal Revolution, no son
of a church anywhere had been allowed to denounce the crimes of his bishop or
to carry his grievances outside his own diocese™.157 The Papal Revolution of the
late eleventh century had opened up opportunities for discourse and the pursuit
of humanity, by o¬ering an alternative to oppressive, particularistic jurisdic-
tions. All souls, by virtue of a common faith, were deemed equal in a commu-
nity of spiritual believers. The liberties achieved by the church paved the way

See generally Deborah Z. Cass, ˜The “Constitutionalization” of International Trade Law:
Judicial Norm-Generation as the Engine of Constitutional Development in International
Trade™ (2001) 12 European Journal of International Law 39“75. The challenge appears to be for
the GATT system to overcome typically national perceptions of its nature as simply ˜foreign
policy™, by strengthening GATT as the ˜foreign policy constitution™: see Ernst-Ulrich
Petersmann, ˜Human Rights, Constitutionalism and the World Trade Organization:
Challenges for World Trade Organization Jurisprudence and Civil Society™ (2006) 19 Leiden
Journal of International Law 633“67.
See Baxi, Future of Human Rights, chs. 8, 9; cf. the recent draft UN code, Norms on the
Responsibilities of Transnational Corporations and other Business Enterprises with Regard to
Human Rights (referred to in ch. 2, section 2.3.3, p. 40).
Rosenstock-Huessy, Out of Revolution, p. 518.
248 A Wholly Mammon Empire?

for the liberties achieved by individuals in the West.158 Before the World
Revolution of the twentieth century and the emergence of a world-society
dynamic, no nationals of a nation-state anywhere could have denounced the
crimes of their governmental leaders or carried their grievances outside the
country in a way which could attract an authoritative jurisdiction. Nowadays,
new jurisdictions allow citizens to take their grievances outside the state terri-
tory. All bodies are deemed equal in an emerging world community of secular
belief. More than ever, laws do not come only from the state in which one lives.
Spiritual belief and economy are the two key concepts which together explain
the deeply historical, constitutional di¬erences between the celestial authority
invoked in the Papal Revolution and the terrestrial authority invoked in the
World Revolution. Spiritual belief and economy also explain the recurring pat-
terns of universalist authority. As we saw earlier in this book, the economy at
the end of the ¬rst millennium leading into the Papal Revolution was, like the
sovereignty of that time, ˜parcellised™.159 At the end of that ¬rst millennium,
with limited exceptions, European feudal economies were ¬xed to the soil and
parochial, whilst the spiritual belief of Christianity was broadly universal in
Europe. All souls were newly deemed equal in that scheme. The Christian faith
permeated. Contrarily, at the end of our second millennium, instead of there
being one main spiritual belief, there are ˜many sects, many creeds, many races,
many ways of education and self-expression™ (even in Europe alone). The only
widespread universalism today, in the West, appears to be in the market
economy160 and the projected equality of all bodies in human rights and
free trade. Rosenstock-Huessy™s juxtaposition of the particularistic feudal
economies and monotheistic Christian spirituality over today™s increasingly
monolithic economy and particularistic spiritualities is profound. God and
economy are the pivotal authorities which have characterised the Western legal
Thus there has been an epochal inversion of economy and spiritual belief in
the West. Economics now appears at the apex in Western thinking. Crusader-
style references by Western politicians to ˜evil™ and ˜free peoples™ and the biogra-
phies of current political leaders, at least in Australia, the UK and the US, show
that Christianity still plays a role in these leaders™ and their governments™ strate-
gies. These strategies cannot, however, be sold to electorates and the interna-
tional stage in those terms alone, at least in the West.161 Christian strategies are
no longer express strategies for achieving public authority. They are implicitly
interior, moral devices. The prevailing focus upon the market associated with
the rule of law, democracy and human rights as the common political discourse
would seem to re¬‚ect an approaching completion of the secularisation of

158 159
Ibid., p. 552. See ch. 4 above.
See Rosenstock-Huessy, Out of Revolution, pp. 495“6.
Religious growth is occurring, particularly involving Islam but also Christianity (more so in
the Third World): see Philip Jenkins, The Next Christendom: The Coming of Global
Christianity (Oxford: Oxford University Press, 2002).
249 The return of universalist law

religion. Economy and spiritual belief have, in many observable circumstances,
˜swapped places™, and the market is emerging as the functional equivalent of a
god of a universalist, secular religion. Although lacking in the traditional hall-
marks of religion at ¬rst blush,162 the laissez-faire liberalism of the contempo-
rary economy nonetheless rates as a dominant belief and approaches the level
of a religion, in the West. Liberal capitalism contains its share of ethics (read
Mill on the freedom of the individual to do anything which does not harm
another);163 ritual (board meetings, corporate regulation compliance); narra-
tive or myth (read Adam Smith on the di¬erence between humans and dogs
residing in the capacity of humans to bargain with each other);164 experience
(talk to many business professionals about their education and the historical
inevitability of deregulation and low tari¬s for prosperity); institutions and
society (look skywards in a central business district during the week and down-
wards on Friday nights to the bars); doctrine (review the jurisprudence of the
WTO); and art (observe the consumerism of much art and music). ˜Risk man-
agement™ appears to have overtaken faith as the solace from human fears of the
unknown.165 References to ˜market fundamentalism™ now abound.
After a relatively brief period of decentralisation into state power, a holy
Roman empire of Christian believers has developed characteristics of a notice-
ably (but not entirely wholly) Mammon empire of cosmopolitan consumers. A
crusade has been waged by dominant leaders for a more integrated economy,
bringing not only personal prosperity but also the relief of ˜the most pressing
moral, political and economic issue of the time™, namely Third World poverty,
the future remedy of which, the evangelists contend, requires further integra-
tion.166 For many of the economically fortunate, the world has become a ˜City
of Gold™, a polity de¬ned by the ¬‚ow of capital, normatively dominated by
capital markets, with states in the background.167 It is telling that, until now,

The indicia which follow are taken from Ninian Smart, The World™s Religions (Cambridge:
Cambridge University Press, 1989), pp. 10“30. Smart admits the possibility of secular
religions where he writes of Marxism as ˜a new political religion™ (p. 549). For ˜A Short History
of Economics Becoming Religion™, see John Ralston Saul, The Collapse of Globalism and the
Reinvention of the World (Camberwell: Penguin Viking, 2005), ch. 5. For deeper ruminations,
see Christoph Deutschmann, ˜Capitalism as a Religion? An Unorthodox Analysis of
Entrepreneurship™ (2001) 4 European Journal of Social Theory 387“403 (economics); Werner
Hamacher, ˜Guilt History: Benjamin™s Fragment “Capitalism as Religion” ™ (2005) 26 Cardozo
Law Review 887“920 (theology).
See John Stuart Mill, On Liberty (1859) (Harmondsworth: Penguin, 1985), pp. 68“9. Harms
meriting interference with individual liberty, such as pornography as opposed to art, fair wage
as opposed to employer freedom, are the subject of an almost talmudic or scholastic liberal
See Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Oxford:
Clarendon Press, 1976), pp. 25“6.
See Anthony Giddens, ˜Risk and Responsibility™ (1999) 62 Modern Law Review 1“10.
For an orthodox sermon, see The Economist, ˜The Case for Globalisation™ 23 September 2000,
See David A. Westbrook, City of Gold: An Apology for Global Capitalism (New York: Routledge,
250 A Wholly Mammon Empire?

wars would generally be waged amidst leaders™ calls for national sacri¬ce and
belt-tightening. The US ˜War on Terror™ was inaugurated by calls to march to
the shops to stimulate the economy.168
There is an emerging perception that people are only rational and fully
human when acting within the marketplace, and that the free market is the
canonisation of democracy.169 This perception is increasingly totalising and
competes for the ultimate reality and meaning of the modern human. The God
of Jews and Christians, to be recalled from chapter 3 of this book as Yahweh “
˜I am . . .™ “ is being reinterpreted by capitalism in the image of industry.
Mammon vies for the position of God.
In a 1998 commercial for IBM™s Lotus division that danced across TV screens to
the tune of REM™s Nietzschean anthem, ˜I am Superman,™ great throngs of
humanity were shown going nobly about their business while a tiny caption
asked, ˜Who is everywhere?™ In the response, IBM identi¬ed itself both with the
great People and the name of God as revealed to Moses: The words ˜I Am™
scrawled roughly on a piece of cardboard and held aloft from amid the madding
crowd. The questions continued, running down the list from omnipresence to
omniscience and omnipotence “ ˜Who is aware?,™ ˜Who is powerful?™ “ while the
hallowed scenes of entrepreneurial achievement pulsated by: an American busi-
ness district, a Chinese garment factory, a microchip assembly room, and, ¬nally,
the seat of divine judgment itself, the trading ¬‚oor of the New York Stock
Exchange. ˜I can do anything™, sang a winsome computer voice.170

Karl Marx wrote of ˜that single unconscionable freedom “ Free Trade™ when he
observed that ˜[a]ll that is solid melts into air, all that is holy is profaned™.171
Unless there is remembrance of the historical constitution of globalisation, the
globalisation of the twentieth century may witness the faster home stretch in
what has been a slow race by dominant cultures towards a new belief system.
Inspired by markets, these beliefs occur within parameters of human meaning-
fulness traditionally occupied, in the West, by inwardly directed or spiritual reli-
gion but now more identi¬able as economic religion.
A general, globalist jurisprudence will need to take account of this normative
transformation of authority. It will need to evaluate the potential limits of laws
and ethics grounded in totalising economic beliefs where once, even in the West,
spiritual religious authority had been so important to law. The historical Western
importance of spiritual authority to legal order should serve as a reminder to the
West about the di¬culties other more traditionally religious cultures may have in
accepting Western universalist laws “ particularly when such Western laws are

Aviel Roshwald, The Endurance of Nationalism: Ancient Roots and Modern Dilemmas (New
York: Cambridge University Press, 2006), p. 300, citing Reich and Lieven.
See Thomas Frank, One Market Under God: Extreme Capitalism, Market Populism and the End
of Economic Democracy (London: Vintage, 2002), pp. xiii“xv.
Frank, One Market, p. 3; management theorists have assumed the mantle of the social
theorists in history who defended the aristocracy, the church and the state (p. 179).
Karl Marx, The Communist Manifesto (Harmondsworth: Penguin, 1967), p. 82.
251 The return of universalist law

seen to defer only to the market and self-interest for authority. On another view,
the twentieth-century emphasis on the economic order may re¬‚ect, more or less,
altruistic concerns of traditional Western religion for the relief of the poor, result-
ing in some real successes, despite some failures, for Third World liberation.172 If
this may be so, then the economic ambitions will need to be related to the spiri-
tual dimensions of the authority deployed to justify law.
Finally, the West may have achieved the status of a great civilisation for having
generated, long after the other major civilisations, its own enduring, albeit
secular, religion. If globalisation is to achieve its potential in a legal context, how
it is thought about will be crucial. It is not only about perceptions of relentless
economics, loss of sovereignty, nor the clash of civilisations as opposed to states.
The chief lesson for the normative and inextricably historical dimension of a
general, globalist jurisprudence is that the twentieth-century institutions
described in this chapter are neither more nor less than forebears responding to
technology, world war and economic depression. They set their aspirations as
best they could into law, and invested required, novel institutions with author-
ity. These aspirations were not limited, and their legal and institutional achieve-
ments were never foreseen to be complacently accepted and unchallenged. That
would be to betray their birthright. To keep memories alive and to balance the
economic imperatives driving law, a globalist jurisprudence should be mindful
that (exterior) theories should not totally replace (interior) stories. Reason
alone, or logos, cannot create an enduring ethics. Narrative stories and cultural
experiences, or nomoi, are essential to this aspiration.173
The aims of the ten chapters to this point will have been accomplished if the
reader has formed three impressions from the story of the Western legal trad-
ition. First, globalisation, for all of its ubiquitous connotations, is also a histor-
ical consequence of the attempt to make peace through legal standards. Second,
law is a mechanism of historically questionable authority and propositions for
social order not constrained by territorial and cultural limits; that is, law in the
West has never come from just one place. Third, law is very much dependent
upon notions of ultimate reality and meaning for its authority.
These impressions can now be further substantiated in two concentrated case
studies of legal communities which exist as jurisdictions in competition with
other jurisdictions. The public law example of the European Union will ¬rst be
considered, followed by the private law example of international commer-
cial law. Whilst not truly global or universal, they do illustrate the aims just
described, o¬ering some guidance for models of law in competition with state
law. Such models of law and norms are characteristic of what people often mean
when they use the word ˜globalisation™.

See Rajagopal, International Law, ch. 4, on the New International Economic Order initiative
of the Third World at the Sixth Special Session of the United Nations General Assembly in
1974, seeking a world order of equity and redistribution.
See Robert N. Bellah, ˜What is Axial about the Axial Age?™ (2005) 46 European Journal of
Sociology 69“89, 85“6.
Part 5
Competing Jurisdictions Case Studies

The twenty-first century European

A foreigner stands with trepidation at the foot of the volcano of European
Union (EU) literature. This volcano regularly erupts and seems to bury so much
of what has come before. Some speci¬c purposes warrant and delimit the
present case study. A general, globalist jurisprudence must search for the
constitutional vocabulary to attempt to understand and foster interactions
amongst the various societies comprising the global scene, including civic and
international organisations, nation-states and their peoples. This a globalist
jurisprudence must seek to do with sensitive deference to a prominent tension
of globalisation which has characterised the Western legal tradition: the
espousal of universal norms and ˜one-size-¬ts-all™ law versus the di¬erent norms
and laws of particular communities. Some other familiar themes will be advanced
too. The regional constitutional construct of the EU proves that law need not
be thought to come only from the state, showing a continuity in the West of a
legal tradition characterised by competing jurisdictions. Furthermore, the
kinship elements of the nation and the comradeship elements of the state are
interacting with the ful¬lling Kantian prophecy of peace through trade in the
creation of new authority.1
These developments all take place nowadays amidst some ˜benign neglect™2 of
the troubling yet hopeful historical context of Europe. For all of the economic
theory which appears to be the raison d™être of the EU in the minds of so many,
the proper place of economics must be recalled. According to J. H. H. Weiler,
˜Europe began as a political project par excellence served by economic instru-
ments.™3 French and German elites dutifully sought to overcome the pain of
nationalism. The political problem of European security after World War II was
to be addressed through economic solutions ˜less important than the political

See ch. 9, section 9.4, pp. 207“10 above on kinship versus comradeship models of
organisation, and peace through the pursuit of self-interest prophesied by Kant.
See Christian Joerges, ˜Introduction to the Special Issue: Confronting Memories: European
“Bitter Experiences” and the Constitutionalization Process: Constructing Europe in the
Shadow of its Pasts™ (2005) 6 German Law Journal 245“54, 248.
J. H. H. Weiler, ˜Epilogue: Europe™s Dark Legacy: Reclaiming Nationalism and Patriotism™ in
Christian Joerges and Navraj Singh Ghaleigh (eds.), Darker Legacies of Law in Europe: The
Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford: Hart
Publishing, 2003), p. 395.
256 Competing Jurisdictions Case Studies

advantages™.4 To consider the economic purposes of the union paramount is to
place the cart before the horse. The correct progression is sought in this chapter,
by resuming the narration of Western international law which we left at chapter
10 section 10.1 (pp. 214“18 above).5

11.1 The reconstitution of the European community
The founding members of the European Union were Belgium, the Federal
Republic of Germany, France, Italy, Luxembourg and the Netherlands. In 1973,
Denmark, Ireland and the United Kingdom joined. Greece joined in 1981, then
Spain and Portugal in 1986. In 1995, Austria, Finland and Sweden joined,
making ¬fteen Member States. That symbol of medieval sovereignty, a single
currency, was introduced as the Euro in twelve Member States in 1999. In May
2004, Cyprus, Malta, the Czech Republic, Hungary, Poland, Slovakia and
Slovenia were admitted, plus the former Soviet Union nations of Estonia, Latvia
and Lithuania. Bulgaria and Romania were admitted on New Years™ Day
2007 (with tough modernisation requirements), bringing the total number of
members to twenty-seven. Further growth is planned, inciting much debate.6
At its heart lies what Philip Allott regards as a European metaphysical crisis of
˜our mutual self-knowing, of our consciousness, of our universality and of our
particularities, of what we share and what we do not share™.7 Tracing the evolu-
tion of this contemporary European community, with its problems, comple-
ments the supranational history and aspirations of the Western legal tradition
which have been concerns of this book within the globalisation context.

11.1.1 Background initiatives
Jean Monnet, an ardent integrationist, had stood apart from the idealistic
movements and the hopes of political uni¬cation for peace, favouring instead
the pursuit of union through functional economic means. The Kantian, per-
petual peace undertones are apparent. As director of the French Modernization
Plan, Monnet saw opportunity in the threat which the rich Ruhr region
posed to France for the region™s foreseeable enrichment of Germany. Ruhr coal

Edelgard Mahant, Birthmarks of Europe: The Origins of the European Community Reconsidered
(Aldershot: Ashgate, 2004), pp. 123, 134.
In the present context, see too Michael Gehler, ˜From Paneurope to the Single Currency:
Recent Studies on the History of European Integration™ (2006) 15 Contemporary European
History 273“89 and the books reviewed therein.
See e.g. Antje Wiener, ˜Finality vs. Enlargement: Constitutive Practices and Opposing
Rationales in the Reconstruction of Europe™ in J. H. H. Weiler and Marlene Wind (eds.),
European Constitutionalism Beyond the State (Cambridge: Cambridge University Press, 2003);
Jan Zielonka, Europe as Empire: The Nature of the Enlarged European Union (Oxford: Oxford
University Press, 2006), ch. 3 and pp. 171“6.
Philip Allott, ˜Epilogue: Europe and the Dream of Reason™ in Weiler and Wind (eds.), European
Constitutionalism, p. 206. See too Ian Ward, A Critical Introduction to European Law (London:
LexisNexis UK, 2003), pp. 272“5.
257 The twenty-first century European community

should be available to French steel mills, the increased output from which could
¬nd buyers in German markets. Although an economic strategy was being
adopted, these plans ˜are best seen as a long-term and transformative strategy
for peace among the states of western Europe . . .™8 Robert Schuman, then the
French foreign minister, was approached by Monnet. Monnet™s proposal was for
a coal and steel community, which was implemented as the ˜Schuman Plan™.
Whilst the resultant European Coal and Steel Community (ECSC) arising
from the 1951 Treaty of Paris did not match the high hopes of supranational-
ism, it nonetheless created a higher authority, ˜a potential nucleus for a
European federal system™.9 Monnet™s European Defense Community (EDC),
founded in May 1952 on the laurels of the Schuman Plan, was not so success-
ful. The EDC had required the establishment of a supranational political com-
munity, the European Political Community, which was not rati¬ed.10 Both
Monnet and Schuman envisaged the European community emerging creatively
and gradually.11

11.1.2 Treaty establishing the European Community
In 1955, the Benelux countries proposed, to their partners in the ECSC, the
establishment of a common market and the joint development of transporta-
tion and atomic energy. The ensuing Spaak Report, named after the Belgian
Foreign Minister, culminated in the rati¬cation of treaties that would establish
a common market and an Atomic Energy Community. Thus emerged in 1957
the two Treaties of Rome creating the European Economic Community (EC)
Treaty and the European Atomic Energy Community (Euratom) Treaty, again
without Britain. The EEC set out to remove tari¬s between Member States and
to create common policies in a variety of areas, although the only one which
reached fruition was the Common Agricultural Policy.12 In 1965, the Merger
Treaty converged into common institutions the separate institutions created by
the three treaties, whilst retaining unanimous or quali¬ed majority voting.
The EC Treaty is the ˜basic constitutional charter™ of the community.13 One of
the hallmarks of Western constitutionalism is the separation of powers between
legislature, executive and judiciary. ˜[I]nstitutional balance™ rather than separa-
tion of powers underpins the constitutional structure of the Community,14

J. H. H. Weiler, The Constitution of Europe: ˜Do the New Clothes Have an Emperor?™ and Other
Essays on European Integration (Cambridge: Cambridge University Press, 1999), p. 91.
John Gillingham, Coal, Steel and the Rebirth of Europe, 1945“55: The Germans and French from
Ruhr Con¬‚ict to Economic Community (Cambridge: Cambridge University Press, 1991), p. 297.
For the factual matrix, see Desmond Dinan, Ever Closer Union: An Introduction to European
Integration (Basingstoke: Palgrave Macmillan, 3rd edn 2005), part 1.
See Ward, European Law, pp. 246“7.
The history is well covered in Mahant, Birthmarks of Europe, chs. 5 and 6.
See Case 294/83, Parti Ecologiste ˜Les Verts™ v. European Parliament [1986] ECR 1339.
See Koen Lenaerts, ˜Some Re¬‚ections on the Separation of Powers in the European
Community™ (1991) 28 Common Market Law Review 11“35.
258 Competing Jurisdictions Case Studies

re¬‚ected in the executive, legislative and limited judicial powers (for example, in
relation to competition) invested in the Commission. Characteristic of the
Western legal tradition, the competition amongst, and the sharing of, jurisdic-
tions underlies this new constitutionalism. In addition to its original jurisdic-
tion, under article 234 (ex 177) of the EC Treaty as amended, the European
Court of Justice has jurisdiction to give preliminary rulings to courts of Member
States on the interpretation of the EC Treaty, acts of EU institutions and statutes
of EU bodies established by the Council.15 Hundreds of references have been
made per year since the 1990s.16 Jurisdictional cross-pollination of ideas and
practices has been encouraged. From the French tradition, administrative law
has been in¬‚uential, as have the form and delivery of judgment. German law has
o¬ered a very similar notion to the idea of proportionality. The most obvious
English in¬‚uence is the infusion of the principle of precedent, although not to
the same extent as in England.17

11.1.3 Treaty on European Union
Succeeding the Single European Act (1986), which had increased the use of qual-
i¬ed majority voting, enhanced parliamentary power and further developed the
internal market, the Treaty on European Union (˜TEU™) was a bold document.
Signed at Maastricht, the Netherlands, in February 1992, the signi¬cant inno-
vations of this treaty were the common foreign and security policy (articles
11“28, ex J)18 of the TEU as amended and the provisions on co-operation in
the ¬eld of justice and home a¬airs (now ˜police and judicial co-operation in
criminal matters™ in articles 29“45, ex K). The ˜three pillars™ to be fostered by
this newly termed ˜European Union™ consisted of the two pillars of these inter-
governmental initiatives, with the third pillar embracing the supranationalism
of Euratom, the ECSC (the treaty for which expired in 2002) and the EC. This
treaty ventured further than previous EC legal agreements by placing tradi-
tional, national areas of jurisdiction within the aspirations if not competence of
the European authority.
The aspirations enumerated in the preamble to the TEU, following from
earlier treaties,19 are constitutionally unique. They do not point the way
resoundingly: there is much ˜feeling in the dark™ involved. The historical
prompts are clear from the preamble: ˜the historical importance of the ending

See T. C. Hartley, The Foundations of European Community Law: An Introduction to the
Constitutional and Administrative Law of the European Community (Oxford: Oxford University
Press, 2003), ch. 9.
Laurence R. Helfer and Anne-Marie Slaughter, ˜Toward a Theory of E¬ective Supranational
Adjudication™ (1997) 107 Yale Law Journal 273“391, 310.
See Thijmen Koopmans, ˜The Birth of European Law at the CrossRoads of Legal Traditions™
(1991) 39 American Journal of Comparative Law 493“507.
The articles in the TEU and EC Treaty were renumbered by the Treaty of Amsterdam, 1997,
e¬ective May 1999.
On the importance of the EU preambles generally, see ch. 10, section 10.3.4, pp. 225“6 above.
259 The twenty-first century European community

of the division of the European continent™; ˜the future of Europe™; the intended
˜solidarity between their peoples™ being ˜deepened™ ˜while respecting their
history, their culture and their traditions™; with ˜attachment to the principles of
liberty, democracy and respect for human rights and fundamental freedoms
and of the rule of law™. These aspirations are conceived with mutating notions
of ˜democracy™ and the ˜e¬cient functioning of the institutions™ within ˜a single
institutional framework™. ˜A common foreign and security policy™ should exist
˜to promote peace, security and progress in Europe and the world™. The secular
human rights and free-trade principles permeate the vision of Europe on the
Time Axis of the Space“Time Matrix.

11.1.4 Treaty establishing a Constitution for Europe
The Treaty of Nice (2001) had, signi¬cantly, featured an increase in the use of
quali¬ed majority voting and its reform, in preparation for further enlarge-
ment. The Treaty establishing a Constitution for Europe, agreed by the
European Council in 2004 but not e¬ectuated, attempts to transform the his-
torical exhortations of the EU Preambles into the language of culture and pol-
itics. ˜Convinced that, while remaining proud of their own national identities
and history, the peoples of Europe are determined to transcend their former
divisions and, united ever more closely, to forge a common destiny . . .™ the
interior customary bonds of nationality are to be transcended by exterior, polit-
ical reason, on the Space Axis of the Space“Time Matrix. Citizens of the
European Member States are asked to remain proud of their nations but to forge
a common (political) destiny. This recalls the kinship versus comradeship
aspects of relationships. On the Time Axis, the legacy of the Enlightenment is
evoked, ˜drawing inspiration from the cultural, religious and humanist inheri-
tance of Europe, from which have developed the universal values of the invio-
lable and inalienable rights of the human person, democracy, equality, freedom
and the rule of law™. Bearing in mind that some of the newer Member States
su¬ered the evils of tyranny and war until the last quarter of the twentieth
century,20 the expansion of the EU to poorer states within the community sum-
monses history in an almost Messianic way. The Preamble also exhorts:
˜Believing that Europe, reunited after bitter experiences, intends to continue
along the path of civilisation, progress and prosperity, for the good of all its
inhabitants, including the weakest and most deprived . . .™ Bringing Europeans
together in this celebration of their diversity of culture and talent might be an
achievable agenda were it prescribed for the Eurovision Song Contest. Despite
the nobility of the sentiments, it is in¬nitely more problematic for Europe
proper, as we shall later see.

See Ian Ward, European Law, pp. 220“1; Fabrice Larat, ˜Presenting the Past: Political Narratives
on European History and the Justi¬cation of EU Integration™ (2005) 6 German Law Journal
274“90, 284.
260 Competing Jurisdictions Case Studies

For present purposes, signi¬cant aims of the proposed Constitution are to:
1. repeal the EC Treaty and the TEU, abolishing the EC and re-establishing the
EU to take over all activities of the EC;
2. revise the quali¬ed majority voting procedure of the Council of Ministers,
taking the ˜blocking™ power away from some Member States and making the
EU more responsive to majority wishes of the EU population;
3. give Member State Parliaments a role in EU a¬airs with a clearer division of
powers; and
4. give the EU separate legal personality to conclude international agreements
in certain circumstances.
Clari¬cation rather than innovation predominates.21 All twenty-seven Member
States are required to ratify the Constitution. In 2005, the proposal was defeated
in referenda held in the Netherlands and France. The lack of responsiveness of
the present and proposed EU to local concerns and democratic input is a
common rationalisation for the failure. The EU ˜has little or even no appeal to
the great majority of the people in Europe™.22 The failure is also connected to
identity and the perception that poorer new members are exploiting the suc-
cesses of older Member States. (This ignores the e¬ects of leaving poverty on
the doorstep, which can result in worse illegal immigration.)23 A ˜period of
re¬‚ection™ was subsequently declared in Brussels.24

11.2 EU higher laws
How does the EU attempt to reconcile the universality of its mission with the
diversity of its constituency? Four major ˜higher law™ legal doctrines underlie the
˜constitutionalisation™ of Europe: direct e¬ect; supremacy; implied powers; and
human rights.25 Two other concepts should be added, these being subsidiarity
and the civil society freedoms. Direct e¬ect, supremacy and subsidiarity have
historical parallels to the legal pluralism of the Christian commonwealth.

11.2.1 Direct effect
Article 249 (ex 189) EC, regarding regulations and directives issued by the
Council and the Commission, provides that:
A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all Member States.
See Trevor C. Hartley, European Union Law in a Global Context (Cambridge: Cambridge
University Press, 2004), pp. xlvi“xlvii.
Alexander Somek, ˜Constitutional Erinnerungsarbeit: Ambivalence and Translation™ (2005) 6
German Law Journal 357“70, 366.
On the EU ˜politics of exclusion™, see Ward, European Law, pp. 225“31.
See Commission of the European Communities, ˜The Commission™s Contribution to the
Period of Re¬‚ection and Beyond: Plan-D for Democracy, Dialogue and Debate™, Brussels,
13 October 2005, COM(2005) 494. See Weiler, Constitution of Europe, pp. 19“25.
261 The twenty-first century European community

A directive shall have general application. It shall be binding, as to the result to
be achieved upon each Member State to which it is addressed, but shall leave to
the national authorities the choice of form and methods.

The basic thrust of this article is that Treaty provisions can create rights which
individuals may rely upon before their domestic courts. As early as 1963, the
seminal case of Van Gend en Loos 26 established that the EU could not be under-
stood in the same light as other international institutions: the EU constitutes a
˜new legal order™. EU Treaties do not simply create rights for Member States as
in public international law; rather, rights and duties are conferred and imposed
upon individuals as well, in a European society of humans and not just states.27

11.2.2 Supremacy
The doctrine of supremacy builds upon the doctrine of direct e¬ect. Whereas
direct e¬ect primarily concerns the implementation of EU law domestically in
a Member State, the doctrine of supremacy is more concerned with the con¬‚ict
of laws situation. The ECJ has ˜Kompetenz“Kompetenz™ in the European legal
order such that it is the ECJ which determines which norms come within the
sphere of application of EU law. Unlike conventional international treaties, by
the doctrine of direct e¬ect and supremacy the EU norm cannot be legislated
away by the domestic machinery. Rather, the EU norm will not be regarded
merely as part of the ˜law of the land™ but as part of the ˜higher law™ of the land.28
The case of Costa v ENEL29 introduced the doctrine of supremacy, where the
precedence of Community law was con¬rmed according to article 249 (ex 189)
EC, the direct e¬ect provision cited above. Irrespective of whether an EU pro-
vision comes before or after the national provision, in all cases the national pro-
vision must defer to EU law.30
Recall the earlier discussion of medieval con¬‚ict of laws machinery and Two
Swords shared jurisdiction between royal and papal law.31 The mechanisms for
handling con¬‚icts of laws between the EU and Member States are analogous to
those mechanisms of the medieval church and king. Medieval papal policy was
not conceived to be innovative. In terms of the Time Axis from the Space“Time
Matrix, papal legitimacy was historically grounded in scripture and academic
commentary, aspiring to reform by reference to biblical vision. For the EU,
legitimacy and authority are grounded in a teleological, purposive view of law32

Case 26/62, Van Gend en Loos v. Nederlands Administatie de Belastingen [1963] ECR 1.
Pierre Pescatore, ˜The Doctrine of “Direct E¬ect”: An Infant Disease of Community Law™
(1983) 8 European Law Review 155“77, 158. See too, Ward, European Law, pp. 76“80 on
˜horizontal direct e¬ect™ and ˜indirect e¬ect™; and generally Hartley, Foundations, ch. 7.
28 29
Weiler, Constitution of Europe, p. 22. Case 6/64, [1964] ECR 585.
Case 106/77, Simmenthal [1978] ECR 629, cited in Hartley, Foundations, pp. 227“8.
See ch. 4, section 4.4.2, pp. 85“8 and ch. 7, section 7.2, pp. 145“6 above.
See Joxerramon Bengoetxea, The Legal Reasoning of the European Court of Justice: Towards a
European Jurisprudence (Oxford: Clarendon Press, 1993), pp. 251“2, 256“7.
262 Competing Jurisdictions Case Studies

as a tool for achieving the purposes of social justice and material progress, deter-
minable primarily by innovative economic imperatives and social research.

11.2.3 Implied powers
The doctrine of implied powers builds further upon the doctrines of direct
e¬ect and supremacy. This doctrine emerged from an ECJ decision concerning
the international treaty-making power of the Community with third parties.
Although the EC Treaty had not dealt at much length with the external a¬airs
power of the then European Community, the grant of internal competence was
held to imply that there was also an external power.33 Cases dealing with various
fact situations have expanded this doctrine, giving rise to criticisms of ECJ judi-
cial activism.34

11.2.4 Human rights
The European Court of Human Rights, which has jurisdiction over the
European Convention on Human Rights, is not to be confused with the EU
human rights initiatives. The European Convention on Human Rights was an
initiative of the Council of Europe, which is three years older than the ECSC,
with over forty state signatories.35
Returning to the EU, whilst there is no bill of rights in the EC Treaty, from
1969 the ECJ asserted that it would review Community measures against the
foil of fundamental human rights as demonstrated in the traditions of the
Member States. Essentially this came about not by design but as a pragmatic
response to a possible German ˜rebellion™. The allegiance to fundamental
human rights by German lawyers and courts, understandable in light of their
national history in the twentieth century, meant that, early on, EU law would
have to comply with the human rights standards of the German constitution if
EU law were to be applicable in Germany. Somewhat curiously, the ECJ denied
that EU law was subject to Member State human rights principles. The ECJ
maintained, though, that it was required to protect respect for fundamental
rights as part of the general principles of law it applied, which could be inspired
by the ˜constitutional traditions common to the Member States™.36 Highly
controversial matters such as abortion, thought not to be fundamental to
EU law, have been left within the domain of Member States. More recently, the
EU resolved to respect the rights guaranteed by the European Convention for

Case 22/70, Commission of the EC v. Council of the EC [1971] ECR 263, discussed in Weiler,
Constitution of Europe, pp. 22“3; see generally Hartley, Foundations, pp. 106“7, 162“75.
See Ward, European Law, pp. 97“101.
See Hartley, European Union Law, pp. 3“4, 276“95; on con¬‚icts between the EU and the
ECHR, see ch. 17; and generally J. G. Merrills and A. H. Robertson, Human Rights in Europe
(Manchester: Manchester University Press, 4th edn 2001).
See Hartley, Foundations, p. 138, citing Nold v. Commission, Case 4/73, [1974] ECR 491.
263 The twenty-first century European community

the Protection of Human Rights and Fundamental Freedoms under article 6
(ex F) TEU.37

11.2.5 Subsidiarity
Article 5 (ex 3b) EC uses the term ˜subsidiarity™, which concerns the relation-
ship between di¬ering levels of authority in society.38 It derives from the Latin
subsidium, meaning help or assistance. Participants in an association are to be
helped so that they might help themselves, encouraging personal innovation.
The immediate source of this notion is to be found in an Encyclical Letter of
1931 by Pope Pius XI, who wrote of it in the context of encouraging smaller
groups to perform social functions best undertaken at that level.39 It has rich
origins in pre-national Swiss Protestantism.40 EU subsidiarity applies when
concurrent competences are held by a Member State and the Community.
Three guidelines are used to decide whether EU action in relation to an issue
will be justi¬ed: it should have transnational aspects; Member State action alone
or lack of action by the EU would con¬‚ict with the EC Treaty; and action at the
EU level should ˜produce clear bene¬ts™.41 Subsidiarity in the EU supports the
economic assumption that no single level of organisation appropriately per-
forms all social functions. According to the new incarnation of the doctrine, the
best states, like the best ¬rms, are those that reduce transaction costs the most.
To reduce these costs, so the argument goes, sovereignty must be transferred to
˜sub- and supra-state units™ in various ¬elds of juridical competence.42
Although of limited legal e¬ect in the EU43 but of more than symbolic impor-
tance,44 at a global level subsidiarity is a promising doctrine for greater local ¬‚ex-
ibility, with more systems of norms being recognised with greater possibilities
for attracting allegiance. It is an opportunity for the potential accommodation
of universality by particular means. It is re¬‚ected in the view of Joseph Stiglitz
that ˜[a]ctions the bene¬ts of which accrue largely locally (such as actions related
to local pollution) should be conducted at the local level; whilst those that
See generally Hartley, European Union Law, chs. 15, 16; Weiler, Constitution of Europe, ch. 3.
For this principle in pre-modern English and German common law, see ch. 6, pp. 121“2 above.
See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980 reprinted
1992), pp. 146, 159, 169. For a detailed background, see Nicholas Aroney, ˜Subsidiarity,
Federalism and the Best Constitution: Thomas Aquinas on City, Province and Empire™ (2007)
26 Law and Philosophy 161“228.
Switzerland™s counterpart to Luther, Huldrych Zwingli (1484“1531), had launched a
signi¬cant Protestant trend for local communities to claim the right to control their own
a¬airs: see Norman Davies, Europe: A History (London: Pimlico, 1997), p. 488.
EC Treaty: Protocol on the Application of the Principles of Subsidiarity and Proportionality,
extracted in Hartley, European Union Law, p. 62.
Joel P. Trachtman, ˜L™Etat, C™est Nous: Sovereignty, Economic Integration and Subsidiarity™
(1992) 33 Harvard International Law Journal 459“73, 468“71.
See Hartley, European Union Law, pp. 61“3. For a detailed critique, see Antonio Estella, The
EU Principle of Subsidiarity and its Critique (Oxford: Oxford University Press, 2002).
See N. W. Barber, ˜The Limited Modesty of Subsidiarity™ (2005) 11 European Law Journal
264 Competing Jurisdictions Case Studies

bene¬t the citizens of an entire country should be undertaken at the national
level.™ Where impacts are global, ˜systems of global governance are essential™.45

11.2.6 Civil society freedoms
The general principles of the internal market are to be found in Part three Title
III of the EC Treaty as the ˜four freedoms™: the freedom of movement of workers
(chapter 1), goods (chapter 2), services (chapter 3) and capital (chapter 4).
What are the doctrines behind these articles? Non-discrimination requires
the equal treatment of persons by public authorities. Proportionality requires
the burdens which are imposed not to exceed the public interest to be served
by the burdens.46 In addition, article 28 (ex 30) EC prohibits indirect barriers to
trade in the form of quantitative restrictions on imports such as quotas and ˜all
measures having equivalent e¬ect™.47
These notions can be broadly illustrated by the Directive enshrining the
mutual recognition of quali¬cations to practise law in the EU.48 A fully quali-
¬ed lawyer in the Member State of origin should be able to practise anywhere
in the EU, subject to conditions such as regulation by the domestic profession.
For example, an English-trained lawyer may practise French law in France, and
vice versa, without further legal education.49 There has been resistance to such
liberal recognition, for example, in Germany.50 A Member State may require an
applicant to pass an aptitude test if there are signi¬cant di¬erences between
quali¬cations.51 Given the technical complexities of particular Member State
legal systems, it would still appear more e¬cient to retain lawyers trained in
particular jurisdictions, especially where local knowledge and intuitions can be
important, say, for advocacy. Europe is still a long way from being the relatively
uni¬ed cultural unit it was in the wake of the Papal Revolution, when a man of
any city or village might go for education to any school, and become a prelate
or an o¬cial in any church, court, or university.52

11.3 Before and beyond the nation-state: international law as
constitutional law
The foregoing discussion of the EU discloses, in Europe at least, a regional
movement to something beyond a system of public and private international
law. From phoenix-like origins from the ashes of the world wars, growing from

Joseph Stiglitz, Globalization and its Discontents (London: Penguin, 2002), p. 223.
Case 114/76, Bela-Muehl [1977] ECR 1222.
See Case 120/78, Casis de Dijon [1979] ECR 649; Cases 267/91 and 268/91, Keck and Mithouard
[1993] ECR I-6097. See Council Directive 98/5/EC.
See H. Patrick Glenn, ˜Comparative Law and Legal Practice: On Removing the Borders™ (2001)
75 Tulane Law Review 977“1002, 981. For case discussion, see James Hanlon, European
Community Law (London: Sweet & Maxwell, 3rd edn 2003), pp. 203“7.
See European Parliament Questions EPQ E-0739/99.
51 52
See Council Directive 89/48/EEC. See ch. 5, section 5.3.1, pp. 104“5 above.
265 The twenty-first century European community

public and private international law and international diplomacy, the EU has
emerged as a viable model for channelling once international co-operation
through law into a more integrated supranational society. This supranational
authority has defused, at least for the time being, the possibility for con¬‚ict
again approaching the level of the Armageddon of the two world wars. The axial
tension between France and Germany appears conclusively alleviated by the EU.
In so doing, the nature of traditional state sovereignty symbolised by the Peace
of Westphalia53 has been radically altered in Europe.
Does the membership of (to use a particular example) the United Kingdom
in the EU mark the end for English sovereignty? Neil MacCormick has argued
that European Community law should not be considered simply in terms of
an Austinian theory of law and state ˜grounded in the theory of sovereignty as
a matter of habitual obedience to state sanctioned commands™.54 On one view,
it might be contended that because the power of the EU organs derives from the
delegation of power by the UK Parliament, the UK Parliament is still the ulti-
mate source of authority. As a matter of positive constitutional law, there
appears to be nothing to stop the Parliament of the United Kingdom from alter-
ing or repealing the European Communities Act (although Parliament™s hands
are tied, so to speak, such that it cannot interfere with European law without
changing the fundamental European Communities Act).55 On another view, the
EU might be considered sovereign because it possesses coercive power over the
UK: the UK Parliament is highly unlikely to revoke its membership of the EU
unilaterally for the huge economic damage the UK would then su¬er. So, whilst
the Parliament is free to revisit the enabling act and to recover its full powers
by amending the European Communities Act, practically this seems a near
Neither of these monocular views of sovereignty should be accepted. As
the European Court of Justice has continually held, the EU constitutes a new
legal order co-ordinate with that of the Member States.56 Di¬erent legal
systems overlap and interact, without requiring subordination or hierarchical
inferiority. A single source of sovereignty is an unnecessary if not unreal legal
concept in the context of this type of legal pluralism. Potentially incompatible
rules exist for recognising the ultimate source of legal authority if, for example,
a Member State jurisdiction disagrees with the ECJ. Competing claims
for supremacy (notably in German Constitutional Court jurisprudence)57

See ch. 6, section 6.4.1, pp. 139“41 above.
Neil MacCormick, ˜Beyond the Sovereign State™ (1993) 56 Modern Law Review 1“18, 4.
See Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European
Commonwealth (Oxford: Oxford University Press, 1999), pp. 80“1, 89. This amounts to
parliament re-amending its ˜rule of recognition™, in H. L. A. Hart™s terms.
MacCormick, ˜Beyond the Sovereign State™, 4; see too Ward, European Law, pp. 111“29.
See e.g. Solange II [1987] 3 CMLR 225; Brunner v. The European Union Treaty [1994] 1 CMLR
57 and The Banana Case (June 7, 2000) 2 BvL 1/97 discussed in Miriam Aziz, ˜Sovereignty
Lost, Sovereignty Regained? Some Re¬‚ections on the Bundesverfassungsgericht™s Bananas
Judgment™ (2002) 9 Columbia Journal of European Law 109“40.
266 Competing Jurisdictions Case Studies

may create co-operation between jurisdictions given the capacity for harm
It can be argued that the EU treaties do not deserve the appellation ˜consti-
tution™ because constitutions address the sovereign power. That is, in the age of
constitutional democracy, ˜the people™ should be addressed, so that government
is legitimated by those subject to it.59 The EU treaties address ˜Member States™.
This argument is not convincing, a¬xing to the word ˜constitution™ an
unchanging signi¬cance thought to be unique to the modern nation-state. Such
a view is historically chauvinist. By that reasoning, the English Tudor and Stuart
monarchs did not have a constitution “ a derisible contention. Much literature
considers the extent to which the EU is an international law construction or a
constitution.60 The answer seems to be that it is both, and something new at
that, requiring a new public philosophy.61 Even were the proposed Constitution
to be rati¬ed and e¬ected, the appellation ˜constitution™ would not make it look
less like a treaty or necessarily mean that the EU would then have a constitution
in more essentially constitutional terms than it has already.62

11.4 Supranationality and the ˜democratic deficit™
˜Supranational™ is the term often used to describe the social location of EU insti-
tutions “ as it could be used to describe medieval Western papal authority.63
There are obvious legitimacy problems associated with authority being exer-
cised at the supranational level. Sovereignty and parliamentary democracy, as
understood in the greater part of the twentieth century, have e¬ectively been
scrambled in the EU.
Citizenship in the European Union is remarkably di¬erent from the national
models of parliamentary democracy and even federal models such as in
Australia, Canada and the United States. State membership of the EU is intended
to be dependent upon the pursuit by each Member State of domestic economic
performance indicia, such as a speci¬ed national in¬‚ation rate, price stability

N. W. Barber, ˜Legal Pluralism and the European Union™ (2006) 12 European Law Journal
306“29, 323“9.
See Dieter Grimm, ˜Does Europe Need a Constitution?™ (1995) 1 European Law Journal
282“302, 288.
See e.g. Nicholas Aroney, ˜Federal Constitutionalism/European Constitutionalism in
Comparative Perspective™ in G. Leenknegt and E. J. Janse de Jonge (eds.), Getuigend Staatsrecht:
Liber Amicorum A. K. Koekkoek (Tilburg: Wolf Legal Publishers, 2005) and sources therein.
See Ward, European Law, ch. 8.
See Weiler, ˜Power of the Word™; Neil Walker, ˜Postnational Constitutionalism and the Problem
of Translation™ in Weiler and Wind (eds.), European Constitutionalism, p. 39.
Concerned to demonstrate the ˜neo-medievalism™ of the European Union enterprise, Zielonka,
Europe as Empire, is perhaps the best treatise on supranationality. More narrowly, see Peter
L. Lindseth, ˜The Contradictions of Supranationalism: Administrative Governance and
Constitutionalization in European Integration since the 1950s™ (2003) 37 Loyola L.A. Law
Review 363“406; Alexander Somek, ˜On Supranationality™ (2001) 5 European Integration online
Papers no. 3 http://eiop.or.at/eiop.
267 The twenty-first century European community

and government de¬cit levels, under articles 98“130 (ex 102a“109r) EC. In addi-
tion, as earlier mentioned, a common foreign and security policy64 and close co-
operation on justice and home a¬airs are envisaged.65 Hence the traditional
sovereignty of the national parliaments is challenged.
Also challenged is the theory of representation in lawmaking and citizenship,
in a twofold manner. First, under article 19 EC, nationality should lose signi¬-
cance in municipal elections for EU positions. In European Parliament elec-
tions, the franchise is handed to people with residence but without sworn
national allegiance. What is even more radical is that these residents should have
the right to stand for election to a municipal government of a Member State to
which they have not sworn allegiance.66 Second, and perhaps more drastic than
the change in implication of what it means to be a citizen of a nation-state, is
the very practice of political decision-making. As the only European govern-
mental organ which features anything approaching popular participation, the
extent of European Parliament power has been ˜codecisional™ (article 251
(ex 189b) EC) with the Council only in limited areas since the TEU (e¬ective
1993) and in more areas since the Treaties of Amsterdam (e¬ective 1999) and
Nice (e¬ective 2003). The Parliament™s role includes advisory and supervisory
functions, with budgetary, some external a¬airs and Commission screening
powers. After the initiation of legislation by the Commission, Parliament and
Council must usually agree upon the ¬nal text, with some exceptions as to pro-
cedure (assent or consultation) and policy (depending upon treaty powers
granted). The Council comprises government delegates of the Member States.
Each state is represented by a government minister on the Council. This body
also represents the EU to foreign countries. It is only the Council which serves
as the forum for the direct expression of national interests.67 Accountable to
governments and not citizens directly, added disfavour is earned by the Council
for its secret deliberation process.68
The synthetic nature of the EU can be exempli¬ed by the controversy sur-
rounding the so-called ˜democratic de¬cit™ which plagues the EU legislative
process69 and other globalist institutions like the WTO and NGOs.70 ˜There is
no civic act of the European citizen whereby he or she can in¬‚uence directly

See generally Hartley, European Union Law, part IV; Zielonka, Europe as Empire, ch. 6.
See section 11.1.3, p. 258 above.
On conceptualisations of European citizenship, see Dora Kostakopoulou, ˜Ideas, Norms and
European Citizenship: Explaining Institutional Change™ (2005) 68 Modern Law Review 233“67,
238“43; Ward, European Law, 268“72. See generally Hartley, Foundations, ch. 1.
See Stephen S. Sieberson, ˜The Proposed European Union Constitution: Will it Eliminate the
EU™s Democratic De¬cit?™ (2004) 10 Columbia Journal of European Law 173“264, 196“7.
For an overview of associated issues, see MacCormick, Questioning Sovereignty, ch. 9.
See e.g. Laurence R. Helfer, ˜Constitutional Analogies in the International Legal System™ (2003)
37 Loyola of Los Angeles Law Review 193“237, 231“7; Alfred C. Aman Jr, The Democracy De¬cit:
Taming Globalization through Law Reform (New York: New York University Press, 2004); Carol
C. Gould and Alistair M. Macleod (eds.), ˜Democracy and Globalization Special Issue™ (2006)
37 Journal of Social Philosophy 1“162; Weiler, Constitution of Europe, chs. 8 and 10; Zielonka,
Europe as Empire, ch. 5.
268 Competing Jurisdictions Case Studies

the outcome of any policy choice facing the Community and Union as citi-
zens can when choosing between parties which o¬er sharply distinct pro-
grams.™71 In the process of EU lawmaking, Member States have been able to
delegate traditional state responsibility in some more economic and controver-
sial spheres to ˜Eurocrats™. This bureaucratic decision-making is unimpeachable
by democratically elected governmental powers.72 Fatally for the draft European
Constitution in the near future, peoples of certain Member States appear to have
decided in their referenda that their political participation is not to be ˜tran-
scended™ in such a fashion. Group and individual political demands arguably
need fora for a greater discussion when formulating signi¬cant policies.73 The
EU™s signi¬cant executive level decision-making does not satisfy the populist
need for transparency in institutions which resemble domestic manifestations
of democracy (however imperfect and idealised that democracy may be).
European supranationality contains both of the idealised tendencies of glob-
alisation: namely of globalised localism (standards of a few nation-state juris-
dictions are imposed at a European level, such as ¬scal policy); and localised
globalism (a nation-state responds uniquely to a universal European initiative
such as refusing to adopt the Euro).74 These tendencies manifest in dialectical,
opposing forces of integration and fragmentation “ or ˜fragmegration™.75
Weiler has used the term ˜infranationalism™ to re¬‚ect upon the transforma-
tion of Europe to appreciate that ˜increasingly large sectors of Community
norm generation are done at a meso-level of governance™ by ˜middle-range
o¬cials of the Community and the Member States in combination with a
variety of private and semi-public bodies players™.76 Essentially this is regulation
by information, exercised by committees politically powered with knowledge
and persuasion.77 Territorial spheres of containable disruption are being under-
mined by supranational competence with associated infranational committees
and bureaucracies.
If there is to be any solace from the heavy criticism of the supranational
democratic de¬cit, it may lie in a liberal ˜process-based™ (as opposed to democ-
ratic ˜input-based™) philosophy. It would require power to be controlled
through checks and balances so that fairness could be incorporated in the
decision-making process, for example through input by interested citizens.78

71 72
Weiler, Constitution of Europe, p. 350. Somek, ˜On Supranationality™, 8.
See Vito Breda, ˜A European Constitution in a Multinational Europe or a Multinational
Constitution for Europe?™ (2006) 12 European Law Journal 330“44, discussing in the process
the rationalist, political ideas of Jürgen Habermas™s European patriotism versus Neil
MacCormick™s more cultural model of nation-state co-operation.
On localised globalism and globalised localism, see ch. 2, section 2.1.4, p. 32 above.
See James N. Rosenau, ˜Strong Demand, Huge Supply: Governance in an Emerging Epoch™ in
Ian Bache and Matthew Flinders (eds.), Multi-level Governance (Oxford: Oxford University
Press, 2004). J. H. H. Weiler, Constitution of Europe, p. 98.
See Anne-Marie Slaughter, ˜Global Government Networks, Global Information Agencies, and
Disaggregated Democracy™ (2003) 24 Michigan Journal of International Law 1041“75.
See Renaud Dehousse, ˜Beyond Representative Democracy: Constitutionalism in a Polycentric
Polity™ in Weiler and Wind (eds.), European Constitutionalism, pp. 155“6.
269 The twenty-first century European community

The quantity and quality of those inputs would be crucial to satisfying com-
plaints about the lack of democracy and public space in the current EU model.79

11.5 Political versus cultural community
In 1788, von Martens wrote about the cultural community of Europe.
The interest which each of the European powers shows in the a¬airs of all others,
as well as the maintenance of a system of balance of power and the similarity of
morals in Christian Europe, together with the bonds linking several of them “
be it the personality of the same monarch . . . a system of federation . . .
common political or religious interest “ all this together permits one to look at
Europe . . . as a special union of states, which “ without having at any time con-
tractually founded a general and positive society “ has her own laws, morals and
customs, and which in some respects is similar to a nation not yet agreed on a

That community was not legislated. It was not coerced. Von Martens recognised
Europe™s interior, cultural compellability. For the future of not just EU law, but
law in general in modern times and times of great change, a general, globalist
jurisprudence must analyse the nature of legislated, politically imposed norms.
Perhaps no greater example of imposed law, especially for the new Eastern
Members of the EU, is to be found in the approximately 80,000 regulations
comprising the acquis communautaire or total body of EU law accumulated to
date.81 Legislation is only one of the utensils in the service of authority, and an
often blunt, bludgeoning one at that.
The formal basis of the EU is contractual. The EU was created by means of
treaties in a rational and exterior fashion on the Space Axis. Its normativity is
fundamentally political and legislated (that is, state-based), which is a problem
because it undermines the cultural (nation-based) aspects of authority.82 There
is a historical, moral force behind the institutions if one cares to look at history
and the treaty Preambles.83 For most Europeans, however, an interior, moral
compellability may exist only for the economically franchised classes and those
able to avail themselves of EU rights law. Notwithstanding, there is a basis for a
kinship relationship. With other cultural commonalities, national and legal
cross-fertilisation occurred over millennia. Survival of the world wars and the
World Revolution are also important cultural commonalities. According to
Philip Allott, the true Europe is the Europe of the tribes and also the mind “
with its cultural products including religion, philosophy, law, science, literature,

See e.g. Ward, European Law, pp. 259“68, discussing the approaches of Weiler and Habermas.
G. F. von Martens, Noveau Recueil de trait©s cited in Wilhelm G. Grewe, The Epochs of
International Law (Berlin: Walter de Gruyter, 2000), p. 291.
See Zielonka, Europe as Empire, pp. 25“9.
See generally ch. 9, section 9.3, pp. 203“7 above.
In tabular form, see Larat, ˜Presenting the Past™, 281“3; and discussion of them in ch. 10,
section 10.3, pp. 225“6 below and section 11.1, pp. 256“60 above.
270 Competing Jurisdictions Case Studies

music, ¬ne arts and architecture.84 Allott is also aware that the EU as a polity
has not discovered the historical kinship of its tribes. Until that happens, the
national Member States will continue with their potential for pathological
national development.85 It seems that they will require a superabundance of leg-
islation in the meantime.
What cultural appeal can the EU hope to create, to inspire the nationals of
Member States to give up, within certain constitutional limits, the priorities
arising from the ties of the Member State? There has been an EU programme of
attempting to grow an interior culture “ to ˜invent the traditions™ as nations have
done historically “ integrated with an exterior political logic. Figure the logo of
the twelve stars of the EU ¬‚ag adopted in 1985. The number twelve is histori-
cally associated with the twelve apostles, the twelve sons of Jacob, the twelve
tables of early Roman law and the labours of Hercules, and also (though not
avowedly) with the twelve stars of the Virgin Mary™s halo in Revelation 12: 1.86
Witness, too, EU scholarships, awards, seasonal events (for example, Europe
Day on the Schuman Plan anniversary, 9 May), and an anthem, Beethoven™s
Ode to Joy. Whether such symbolism can actually focus the attention of diverse
people into supra-nationhood, or supra-statehood, remains to be seen. It has so
far not succeeded. Continued barriers will be supported by the nationalist his-
toriographies which prevail in the schools and popular media of Member
States.87 It will also be di¬cult in the absence of a single national language,
which we saw in chapter 9 was so important to group consciousness.88
No simple solutions are on the horizon for the EU. The interior, cultural
aspects of community are evidently very di¬cult to create. The exterior, polit-
ical aspects of authority are undermined by the democratic de¬cit. Whether
there should, in fact, be any undue alarm about these di¬culties is not even
clear. Intuitively, there must be something positive about the fact that these
di¬culties occur at all, given Europe™s bloody history. It is as though the family
killings have ¬nally stopped (at least in the West) and the surviving elders are
able to sit down and plan the children™s legacy. Although the voices are raised,
the family stays seated at the dinner table. There seems to be more food.
One of the pre-eminent commentators on the EU, J. H. H. Weiler, has com-
pared the constitutional implementation of the EU with the constitutional
moment of the Jews at Mt Sinai receiving their law via Moses. Both episodes
Philip Allott, ˜The European Community is not the True European Community™ (1991) 100
Yale Law Journal 2485“500, 2496“9. Allott, Health of Nations, [4.85].
See Chris Shore, Building Europe: The Cultural Politics of European Integration (London:
Routledge, 2000), pp. 47“8, and ch. 2 generally. On the invention of national traditions, see
ch. 9, section 9.1.4, p. 201 above.
See Oliver J. Daddow, ˜Euroscepticism and the Culture of the Discipline of History™ (2006)
32 Review of International Studies 309“28; Franz C. Mayer and Jan Palmowski, ˜European
Identities and the EU “ the Ties that Bind the Peoples of Europe™ (2004) 42 Journal of Common
Market Studies 573“98, 580“1.
See ch. 9, section 9.1.1, pp. 197“8 above. See too Philippe van Parijs, ˜Europe™s Linguistic
Challenge™ (2004) 45 European Journal of Sociology 113“54; Mayer and Palmowski, ˜European
Identities™, 581.
271 The twenty-first century European community

demonstrate that, possibly as with all constitutions, the understanding of con-
stitutional signi¬cance comes only after the commitment to the constitution
has been made and before interpretation is possible. ˜All that the Eternal hath
spoken, we will do, and hearken™ (Exodus 24: 7).89 To overcome the trauma “
slavery in Egypt or the World Revolution, respectively “ a commitment must be
made. Then must come the pursuit of understanding. The biblical analogy can
be continued. The blood sacri¬ce of the World Wars must be remembered and
recalled regularly when thinking of the emerging EU covenants, just as the
spilling of blood gave meaning and sanctity to all of the major biblical
covenants, in both the Old and New Testaments.

11.6 The global significance of the EU
The European Union is neither a nation nor a state, yet the reality of its bur-
geoning legal science, legal system and laws cannot be disputed. Although the
EU lacks the religious and theological history of the medieval papacy, the EU is
by its simple modernity a far more technologically advanced and industrialised
constitution which recognises the global tensions between diversity and univer-
sality. The visible achievement has occurred in a remarkably short period of time
(although the roots go back for at least a millennium). The medieval papacy
evolved di¬erently from the EU, despite the supranational similarities. The
papacy required many hundreds of years, if not the ¬rst millennium CE, to
achieve its legal legitimacy organically and gradually. Between the Papal
Revolution and the Protestant Reformations, the papacy, we saw, was able to
assert political and moral authority, respectively, at the exterior political and
interior moral orientations of the Space Axis of the Space“Time Matrix, through
a common biblical narrative and vision of heaven on earth on the Time Axis. The
EU is less e¬ective in the moral dimension. It takes its norms from more plural,
national spheres, and is governmentally abstracted not only from the citizen to
the Member State but also from the Member State to the Union. EU authority is
distinctly political as opposed to involving the moral input of individuals in their
political processes. The general expansion of executive government power asso-
ciated with globalisation and modern capitalism may otherwise re¬‚ect the
progress of the consumer and the regress of the citizen,90 the progress of appetite
and the regress of the mind.91
European states formed the basis for the international society of the nine-
teenth and twentieth centuries, enshrined in the territory-laden world contem-
plated by the UN Charter and its guarantees of state domestic jurisdiction.92 The
priority of European states in this development is matched by the priority of the
European states in now providing an example to the world of co-operation
beyond state spheres, made necessary by the World Revolution. The EU may
Weiler, Constitution of Europe, ch. 1. 90 Ibid., pp. 333“4.
David A. Westbrook, City of Gold: An Apology for Global Capitalism (New York: Routledge,
2004), p. 233. See article 2(7) of the Charter of the United Nations.
272 Competing Jurisdictions Case Studies

provide a foreboding of legal relations amongst peoples and states in a global
context.93 Freedom of goods, services, labour and capital were part of the EU
project long before ˜globalisation™ became a buzz-word.94 If globalisation is
thought about as ˜the process that takes away from individual States the ability
to control day-to-day activities within their territories™, the EU is ˜foremost
among a whole pack of international bodies™ with a globalising power.95 Such
power is more regional than global. EU law may, though, be considered ˜global
law™ not in the sense of ˜universal international norms that prevail globally™
(which are relatively rare), but in the globalisation-as-interconnection context
of ˜a m©lange of domestic constitutional and international sources™.96
A ¬nal matter of global signi¬cance worth present note is the public attempt
in the EU constitutional documents to come to terms with, if not cope with,
the past. That much is apparent from the Preambles to the EU documents
and the sorrowful yet hopeful preambles to other post-World War II globalist
institutions discussed in chapter 10. The particular German concept of
Vergangenheitsbew¤ltigung has been applied to European legal history. Not
easily translatable, the term represents the e¬ort to face the past, for example to
come to terms with Auschwitz.97 German and French favour for European insti-
tutions in their early days re¬‚ects this grappling.98 More widespread grappling
with new institutions and their historical origins is a global necessity.
This chapter could only selectively portray the historical, political and legal
debates which animate the industry of EU academic discourse. Of necessity we
have peered through a keyhole into a large room with many people engaged in
noisy conversations. Notwithstanding all of the possible associated and oppos-
ing political positions one might strain to understand, a general, globalist
jurisprudence might see hope in the EU model of law for its sensitivity to his-
torical and normative considerations. All four dimensions of the Space“Time
Matrix are engaged in the academic and public debate. On the Space Axis, the
individual has numerous normative systems and jurisdictions vying for alle-
giance “ competing cultures, nations, states, political rationalities and ideals of
See e.g. Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge:
Cambridge University Press, 2002), p. xii and his Eunomia: New Order for a New World
(Oxford: Oxford University Press, 1990), [13.79]; see too Philip Bobbitt, The Shield of Achilles:
War, Peace and the Course of History (London: Penguin, 2003), p. 638 on ˜formally globalizing
the European nation-state through a universal international law™.
George Ross, ˜European Integration and Globalization™ in Roland Axtmann (ed.), Globalization
and Europe: Theoretical and Empirical Investigations (London: Pinter, 1998), pp. 173“6.
Hartley, European Union Law, p. xv; see too Ward, European Law, pp. 241“5.
See J. H. H. Weiler, ˜On the Power of the Word: Europe™s Constitutional Iconography™ (2005) 3
International Journal of Constitutional Law 173“90, 184.
See Joerges, ˜Introduction™, 248; his ˜Europe a Großraum? Shifting Legal Conceptualisations of
the Integration Project™ in Joerges and Ghaleigh, Darker Legacies, pp. 167“8 and also ˜Working
through “Bitter Experiences” towards Constitutionalisation: A Critique of the Disregard for
History in European Constitutional Theory™, EUI Working Papers, Law No. 2005/14, European
University Institute, 2005. See too Thorsten Keiser, ˜Europeanization as a Challenge to Legal
History™ (2005) 6 German Law Journal 473“81, 477“8.
See Mahant, Birthmarks of Europe, pp. 10, 53“4.
273 The twenty-first century European community

being European. On the Time Axis, the past dimension is racked by a tormented
history which at the same time has sprung from a tradition of social thought
alert to the issues associated with attempting to regulate diverse spaces with uni-
versal norms. Many visions for the future are available, which the laws may ¬x
upon and attempt to incarnate in the present “ visions of peace, economic pros-
perity, enlargement, charity, and ideals of democracy, statehood and co-opera-
tion. In the context of globalisation, there may well be no better microcosm
from which to draw lessons about public law as jurisdictions increasingly inter-
sect and interact by evolution and by design.
Amidst these rich orientations to norms, ideas of appropriate legal orders and
appropriately ordered laws perhaps stand the greatest prospect of being chal-
lenged, evaluated and improved through attempts to reconcile con¬‚icting
norms and systems. Law might emerge from that process with richer bearings
than law otherwise su¬ered when it was considered by most to be a tool of an
unquestionable sovereign state. In that respect, a general, globalist jurispru-
dence will do well to be conscious that, in the West, legal concepts have
advanced with the times, transforming authority and in turn being trans-
formed, as they did from Aquinas to William of Ockham to Vitoria to Grotius
to Hobbes to de Vattel to Bentham; from the Papal Revolution to the Protestant
Reformations to the English Revolution to the French Revolution to the World
Revolution. At least with that consciousness should come less surprise and an
enhanced ability to accommodate change whilst maintaining some stability
through law, so conceived.
Again, an irresistible conclusion must be that if widespread satisfaction with
a constitution cannot accrue to Europeans who are so comparatively similar,
how much more di¬cult will be the path for closer constitutional relations
between the peoples of di¬erent continents. A global constitutional document,
as one might consider a state constitutional document, is in the realm of science
¬ction. That is because even just in Europe, everyday authority, or gravity,
cannot be found or invented on the Space“Time Matrix in terms more com-
pelling to most people than already exists in their nation-states.
A general, globalist jurisprudence might most realistically concentrate upon
the science of the prospects for intermediate forms of normative co-operation
across the world and within its normative systems. In the standard textbooks of
European Union law, we ¬nd something of the traditional public law mainstays
with a new constitutional language and method, which can serve a globalist
jurisprudence. In the next chapter we shall see something of an emerging
Western private law which can serve this enterprise too.

International commercial law and private

Before retiring to draw conclusions from our Gulliverian travels through the
Western legal tradition, a further case study of jurisdictions existing in the same
space as other jurisdictions will assist. The lex mercatoria “ the international
commercial law of merchants “ is considered. Immediately, the criticism may
be levelled that the choice of the lex mercatoria su¬ers from a paradigmatic
weakness, despite its existence as a jurisdiction in competition with state com-
mercial law. After all, not all of the commercial world relies upon the distinct
lex mercatoria and surely commercial laws under various banners are the pre-
serve of societies with a degree of a¬„uence and sophistication. The microeco-
nomic lex mercatoria has been chosen, however, because it illustrates the
potential for lived (not coerced) law with great historical survival value and
supranational success, minimally reliant upon the state. Together with contract
law, the lex mercatoria also lends itself to contemplation about the extent to
which laws can be codi¬ed or universalised amidst local diversities. (Deserving
of recall in this context are the concerns we saw expressed by the Historical


. 10
( 14)