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LEGAL PLURALISM AND THE BUILDING OF EUROPE

André-Jean ARNAUD
(C.N.R.S., France)

 


 

Below, I am going to develop three propositions : (a) that pluralism has disappeared from lawyers’ vocabulary due to a definitively Western and old-fashioned made-up story called ‘moderne’ legal philosophy ; (b) that a ‘post-modern’ view on law has to reintroduce such a pluralism in various ways in order to promote a polycentricity(1) instead of the old tradiutional monocentricity ; (c) that Europe will be able to fulfill its aims of unification/harmonization only if european lawmaking abandons the ‘modern’ process to adopt the features of a post-modern law.

To demonstrate this, we must assume three postulates : (i) we are able to speak about ‘the’ modern Law in spite of all the differences that exist since all of them are based on the same philosophical concepts(2) born and developed during the 12.-18. Centuries ; (ii) we shall refer to ‘the’ European Law for short in despite of the coexistence of two very different orders which produce on the one hand Community Law and on the other Law of the European Organizations ; (iii) we define ‘polycentricity’ : it challenges the legal monocentrism responsible for the ‘modern’ pyramidal legal order.

Pluralism means the simultaneous existence - within a single legal order - of different rules of law applying to identical situations. In other words, when different rules can solve one case in various ways, we speak about pluralism. Pluralism can also be said when dealing with the co-existence of a plurality of different legal orders having links between them. Indeed, this is precisely what happens in the building of Europe.

We willingly refer to "The European Community"(3). This reveals optimism and at the same time maintains many ambiguities(4). To speak in the singular is not totally removed from the truth, but nevertheless constitutes a certain exaggeration, even as the famous 1993 dawns, which is to mark the birth of the single European market. Europe still feels the effects of the numerous episodes which have happened in the formation of the European Communities. Even so, it would be well to distinguish between the European Organizations of Cooperation and the European Communities proper in terms of the formation and historical development of each(5).

The European law has had an anarchic and opportunist formation. Europe, as we now it know, was built upon the ruins of the Second World War. After so many previous failures, it was carried out in a rather "blow by blow" way, and almost always in a hurry.

On another hand, Europe has a dualist institutional organization. Institutionally we are faced with several "Europes": a great Europe, placed under the augers of the Council of Europe, which is based in Strasbourg(6), and the European Community(7). Each of them has its own rules of working, its legislative authority (even though the word is somewhat misused in terms of the actual powers of the assemblies), its executive authority, its Court of Justice.

Therefore, Europe has a plural law: on one hand, the Community law, and on another hand, the law of the European Organizations. There is no real union between theses two worlds. Not only do the European countries each have their own internal law, as well as the law which governs international relations in which they are involved; but undeniably there also exists at present a European law, a complex law formed, on the one hand by Community law, and on the other by the law of European organizations, authorities which, as we have seen, do not specifically belong to the Community. In spite of article 230 of the Treaty of Rome of 1957, we should take measure for the cooperation between Strasbourg and Brussels, in spite of the participation of civil servants from each institution at certain meetings of the other, in spite of the Council of Europe's having installed a liaison office in Brussels, and in spite of an intensifying of since 1987, strictly speaking there is no real union between these two worlds. One would have thought that the European Convention on Human Rights, which secured the greatest jurisprudential development at the Court of Strasbourg could play the part of a real feature of union. However one of the leading authorities on the doctrine of the subject, noted, in 1984, that no formal "integration" of the law of the Convention into law of the European Community exists."Undoubtedly the Court of Luxembourg was able to develop a system appropriate for the production of fundamental laws, using general principles of law and even referring to the Convention as a source of inspiration. But... as yet nothing allows us to maintain that the Communities are formally linked by the Convention"(8).

Thus, we are faced with a multiplicity of sources of law. It is the at the Council of Europe where the largest number of States is represented. Precisely because of this fact, these States are perhaps the least ready to suffer legislative restraints, which would soon seem to be a restraint on their sovereignty. In the Council of Europe, the decisions of the Committee of Ministers take the form, either of recommendations to the Government's of the Member States, or of European Conventions or treaties which have executive force for the States which ratify them. Moreover, no sooner had it been set up, then the European Court on Human Rights, made its presence felt by the quality of its decisions which have appreciable increased in number over the years. It rules on the foundations of the Convention of Human Rights and Fundamental liberties, signed in Rome om the 4th of November 1950, together with additional protocols(9).

As regards Community law more specifically, this is made up of the "ensemble of rules which govern the structure, the powers and the activities of the European Communities. Heirarchically coordinated into a body of systemized law(10),these rules or Community law constitute what is called the legal Community order"(11). These rules have many sources. Firstly there are those of the constituent treaties of the Communities, but equally other should be mentioned; the unilateral acts of Community authority, directives(12), regulations, general(13) and individual decisions, recommendations, opinions, European parliamentary resolutions, as well as acts concluded in the Community order, by member States within the Community, or by the Community with other countries outside it. The jurisprudence of the Court of Justice of the European Communities of Luxembourg, must also be taken into account.

By way of unwritten sources, we should also add the principles of unwritten law integrated into Community law (general principles of international law, universal standards of law, principles drawn from the internal laws of member countries) and customs(14).

Such a plurality leads to a pluralism: this is quite evident when we see how great is the role played by the Courts and especially the European Court of Human Rights, which is daily dealing with conflicts between laws in force through Europe. Should we require some unity among these European laws, and should we keep stating the question in traditional terms, we can only answer in terms of integration or harmonization.

Let us look at this question otherwise: let us begin asking why pluralism is a problem and what means "to state the question in traditional terms". This supposes that we firstly examine the general theoretical framework in which pluralism appears like a problem.

1 - What kind of "pluralism"?

Pluralism has become a problem only from the raising of the Modern Age. Until the XIIIth-XIVth century, law was something concrete. Law was not something attached to the State, centralized in the hands of a single power such as conceived in the Modern State and Law Theory. At the same time when law was based upon concepts, the idea of universalim appeard. Paradoxally, the nations, born at the same time, were based on the concept of national sovereignty, what means the existence of a single power upon the whole social system: economics, politics, law and so on. In this process, a clash has happened between the State and what is called the Civil Society. The modern laws were conceived as blocks facing one another and within which it is not possible to allow contradictions. In such a theoretical framework, pluralism sounds like a nonsense, unmeaningness, absurdity whatever type of pluralism which we deal with.

Indeed, we are able to distinguish at least three kinds of pluralism: [a] pluralism attached to the distinction between State and Civil Society; [b] pluralism as a consequence of the single logic related to the unity of the universal legal reason; [c] pluralism as defined at the beginning of this paper, in a normative transnational context.

Whatever type of pluralism it may be, each time the postulate is: law cannot have several springs. In the first case [a], this means that law cannot spring at the same time from the State and from the Civil Society. In the case [b] this means that it is not possible to find contradictory statutes or rules of law or Judicial sentences within the same legal order. In the case [c], this means that contradictions between several legal orders must be solved in a common satisfying way.

Now, we can observe that many recent events are at variance with these assertions.

Firstly, it appears that it is not true to say that law can only spring from the State. The principle according to what there is one single sovereignty on the same nation is a principle inherited from the Modern Age. Nowadays we are the witnesses of a fragmentation of sovereignties, either burst of the single national sovereignty to various economic, cultural, political sovereignties or breaking-up of empires or States.

Secondly, sociologists and anthropologists have shown a lot of cases when it does exist a plurality of legal springs. This type of pluralism appears from many studies dedicated to attempts to alternative or informal conflict resolution which show the raise of alternative laws alongside and even often against the official law(15). Such a type of pluralism is relevant to European law only when it deals with an alternative within the framework of the legal order in force. In this sense, this is a false pluralism due to the fact that the eventual existence of various springs of law is a "legal" fact, "legal" because the law allows the fact.

Europe is more concerned by the third type of pluralism - which deals with a transnational context. We know all the various springs of normative laws in presence which constitute the European law. We are faced with the co-existence of separate legal orders which between them establish the relations of law and, at the same time, of different rules of law applying to identical situations, being in force simultaneously.

2 - In search of an explanatory logic.

2.1. What kind of logic could give an account of such a pluralism?

We firstly think of the positivist paradigm. In fact, the shock between laws in force is located on a State level. How could the sovereign State, such as bequeathed us by modern political thought admit supranational rules which would bind it, without going back on itself? Now, it is precisely the spectre of supranationality, which has made Europe pull up its hood so often and drag its feet for so long.

Faced with this situation, a certain number of determined Europeans have decided not to give in to particularisms. They speak absolutely of integration. Many lawyers are prone to contrast this attitude to a more moderate process, which would consist of tending further each day towards a harmonization of legislations. Let us make it clear that the difference between harmonization and integration lies not in their nature but in the practical implementation of European unity.

The integration-harmonization rational aims at constituting a Europe above the individual States. Nevertheless, the violent assertion of supranational legal authority is rare. This was the case in the 1951 Treaty of Paris which created the E.C.S.C., which adopted a sectorial federal solution. "It is an institutional novelty which is characterized by the use of the adjective "supranational", to designate the organization itself, and also its principle organ, the High Authority"(16). But although this treaty "constitutes a definite innovation in relation to existing international organizations, this innovation has remained confined to the limited industrial sector of coal and steel"(17).

As for the rules laid down by the Community treaties, they are directly applicable to the internal order; the measures which are aimed at individuals will lead directly to laws and obligations for them; those which impose an unconditional obligation on the member-states to do(18), not to do(19), or not to do any longer(20), lead directly to laws for citizens. Legal rules are directly applicable to the interrelations of the national member-states(21).

Moreover, there is a rigid procedure concerning infringements of breaches in the application of Community instructions, articulated in four phases: a letter is sent by the executive commission of the European Community to the recalcitrant country's government, asking it to observe the instruction. A time limit is fixed in which to respect the directive or instruction. Court action is introduced in the Court of Justice of the European Communities, or an action is brought before the Court of justice of the European Communities; the Court then passes sentence.

With regard to the applicability of the other measures of Community law, the fundamental principles of the application of Community law, to the law of the member States serve as a guide. According to these principles, no official "reception" is required provided that it deals with legal positive norms (not "programmatic" norms) and autonomous (not requiring the intervention of a complimentary act of the Community or State authority).

As regards the jurisprudence of the Court of Justice of the European Communities, its value is only as a precedent. A sentence given by the Court of Justice does not in any way constitute a rule of law. Thus the jurisprudence of the Court of Justice has constructed and applied the principle of self-executing or immediate effect of the measures of Community law in the internal order of member-states; or indeed the principle of primacy, of Community rule, in the international legal order over the contrary national rule, even if the latter comes later.

The Court of Luxembourg has always held quite a directive attitude which asserts itself as the vanguard of true integration. "Direct applicability means that each rule of Community law must uniformly exhibit the fullness of its effect to all member states, from the moment the rule comes into force and during its whole period of validity, so that, in this way, the measures are an immediate source of laws and obligations for all those concerned, whether they be member-states or individuals, part to legal reports in the domain of Community law; that this effect concerns equally any judge who, taken in the context of his competence has, as an organ of the member state the mission of protecting the rights conferred on individuals by law"(22). And elsewhere it is stated that the national judge must apply and insist upon Community measures or dispositions because "these measures are an integral part of the legal order applicable to the territory of each member-state and are of high-priority in it". He must apply them as needed, "not applying any disposition possibly contradictory to national law, whether the latter be anterior or posterior to Community rule".

We must assume that the Court of Luxembourg constitutes an exceptional or distinctive universe. Firstly, it affects treaties which deal essential with business law. Moreover there is no system of compromise in Luxembourg. The Court works by prejudicial questions (needing to be interpreted by the Treaty of Rome) or by giving a verdict ( over a dispute on the case of the application of a rule).

But it is the national Courts which remain the judges for the precise application of Community law. The Court of justice of the European Communities exercises only the power of attribution. It is the judge of the legality of the Community authorities acts. It interprets Community rules on prejudicial question from national Courts; it judges infringements by a State on the complaint by the Commission or by a member-state. On no account does it directly know about the demand of a citizen who attempts to get a right recognized by Community regulations when it meets a State or an individual.

Nevertheless, the Community's Court of Justice asserts, despite the silence of Community treaties, that by an interpretation of their dispositions or measures, in conformity with their spirit and their finality, that Community rules integrated into the internal legal order of the member-states, take precedence over the contradictory national rule. In a legal system, then the Community rule must be placed at the head of a hierarchy of the rules of law. However, for as long as the Community has not exercised the competence on a given matter, attributed it by a treaty, the member states retain, on a provisional basis, the power to settle it on its own account, and to lose their national competence, only when the Community exercises its own. In this respect, on even notes, an accentuation of the integration process in 1971. Community prescriptive decisions from then on apply equally to the constitutional norms.

As for the European Court of Human Rights, the decisions made by this Court are to be executed in the State which is party to the proceedings. This fact has its counterpart. The fact that a judgement made by the European Court on Human Rights does not affect the other States which have adhered to the Convention but which have not been party to the proceedings. Both raise a good many questions in the mind of the person trying to "think" Europe legally. Can one expect States' executory to modify their legislation so that such a situation does not arise again? Besides will it be necessary to wait for the same affair to happen in each of the States so that the legislations become progressively unified? In other words, how can one imagine a Europe on the level of the Convention? Can it be said that Europe in the order of legal thought is a Utopia corresponding to material interests, that it is a prosaic entity? Or is it, a case instead of a reality progressively carrying a promise, and if so what promise?

It seems that the implementation of the concept of democracy in the jurisprudence of the European Court of Human Rights ensures a certain integration, even if such an assertion deserves to be qualified(23). Starting from this referent, held by both Courts, we are witnessing, strictly speaking, the elaboration of a fundamentally jurisprudential European democratic "normality" which brings about a subsequent normativity. "The Convention is interpreted in the light of notions prevalent these days in the democratic States", it is stated in Strasbourg(24), whereas for its part, the Court of Luxembourg appeals to legal principles generally recognized in the legal system of the member-states"(25).

The concept of Human rights appears as the "essential foundations of a democratic tic society"(26), according to the expression used in the Handyside judgement of the freedom of speech(27). In this a unifying reason is found and the real European Community public order is seen to appear, which is destined to "safeguard the... common patrimony of political traditions, of ideals, of freedom and of the preeminence of the law" accumulated by the generation of the "free democracies of Europe"(28). To a certain degree, and in fact this is the opinion of an eminent member of the European Commission of Human Rights at Strasbourg, the question is really one of integration: "When one speaks of integration in Europe, what is thought of above all is the Community system and the system of economic integration, along with the developments of common principles of this area of law. What is often forgotten" he adds " is the system of integration created by the Convention, which, I believe shows a great development in integration of common principles of the state of law"(29). It is true that integration is sometimes implemented by real innovations, such as the creation of laws by the judge of the European Courts of Human Rights: "By making use of his powers of interpretation, which appeals to an essentially teleologic and evolutive method, the Court participates in the creation of rights"(30). In this way it was the Court which created the "right of access to a Tribunal"(31) The Tribunals are so self-assured that they allow themselves to adjust their attitude according to the nature of the rights and freedoms alleged to be violated or restricted.

In conclusion, in the eyes of the Court of Luxembourg, if Community law enjoys real primacy, it may legitimately claim it, on the grounds of being the "common" law of the member states. This theory can but make one reflect, in spite of all the differences that have been noted, upon the diverse experiences of "common" law which were seen at work during the middle ages. It contributes an original contribution to traditional legal science, but remains inscribed in the continuity of modern thought on State and Law.

The positivist paradigm does not provide a way out of the impasse created by the need to recognize the existence of pluralism, except one of violence. Violence against intrusion, or violence against itself, which nationalists feel to be an incitation to suicide. But there are other ways of thinking through this "confrontation", and many authors have endeavoured to imagine pluralism in new terms. We should be delighted by this progress in European legal thought.

2.2. In search of other paradigms

It was indeed the place of theoretical source of law to intervene in a situation which calls for the "emergence of a plural and gradual rationality... which refuses to be satisfied by a monological (yes/no) answer to the most basic legal questions"(32). European legal thought could not be either monological or monolythic. It is a question of finding the keys which will open the multiple doors of access to the understanding of European law. Amongst paradigms presented by legal theorists, several seem liable to selection for their ability to give an account of what we seek to understand, and beyond that, to found a European legal thought.

2.2.1. Logics of flexibility; towards the extension of adaptable techniques.

The first obvious fact which stands out, unglancing at European law, is that often it cannot enter into traditional legal categories. To perceive it as a whole demands a certain amount of adaptability on the part of lawyers - and even legal scientists. Dean Jean Carbonnier was one of the first, if not the first to talk of "flexibility" in relation to the law(33). But in fact the author uses this term in a very specific sense. Colleagues of this renowned civilist could have reproached with ill-treating the law when handling it sociologically, whilst sociologists would have really despised an approach which in their eyes did not respect the methodological strictness in social sciences. This is why the very enriching and useful reflections which the author agreed to reveal to the public, appeared under a title which immediately dismissed all pretension.

Here we will speak of flexibility in a different sense, referring to paradigms which during the last decade have developed under the pen of several legal theoreticians. Some still belong to a traditional concept of law with a very varied, creative ambition; other have been brought in from other social sciences, with the conviction that a radically new concept of law was appropriate to a new society.

a) Some techniques stem from strict traditionalism.

The strictest lawyers manage to situate within internal legal orders techniques allowing those whose responsibility was to put law into operation to reach, already in the very heart of national laws interpretations liable to ensure law its greatest development. One was already familiar with the research into the intention of the legislator, which in and up-to-date version denotes itself to an appeal to objectives of the law(34). Other process are still even more favourable to a flexible conception of the law: in the main, they are the use of general principles and standards.

First of all, as regards general principles, which cannot be ennumerated exhaustively here, It is useful to mention the role they play in the development of European law(35). We only have to look at how much the Courts, both that of Luxembourg and that of Strasbourg use them in their decisions. Some of them are simple a transposition of principles of internal law(36). The European Court of Human Rights readily refers to all those principles which are to do with democracy, such as, for example, the principle of "specific and effective rights" or of "the balance between general interests and the fundamental rights of the individual"(37) or, on a more general level, that of the separation of powers, in as far as French law is concerned, with temperaments imported from Germany (Ordnungweidrigkeiten) and Italy(38). But perhaps the principle of which most use is made is that of the Democratic legitimacy which constitutes one of the major referents of the two Courts.

Some lawyers regard this principle of democratic legitimacy as a standard(39).The difference between general principles and standards has essentially to do with the fact that the latter are "an instrument of the measure of the behaviours and situations in terms of normality"(40). Thus it is rather the adjectives "normal", "exclusive", "reasonable", "unpredictable", "harmful"... which in a legal text (and providing we allow the person who applies it the greatest scope possible for its interpretation) deserve the name of "standards", in the strictest sense. It is in this way that true law is often born.

Thus it is in matters of the length of procedures. Article 6.1§ of the European Convention on Human Rights states that "Every person has the right to have his case heard impartially, publicly and within a reasonable time limit...".

Based upon this article, the idea gradually came about in West Germany of a time limit for legal proceedings, of the closure of a case if it went on for too long. After long discussions in certain commissions of the Federal Assembly, this was the judgement of the High Court of Dusseldorf, which now acknowledges a sort of prescription on the basis of this article 6(41). The interpreter of law, allows law itself to integrate from reason, in the sense of "moderation", of a "normal and acceptable measure", and legal rule commonly opposable to the European States.

As with the Court of Justice of the European Communities, itself in search of standards, it not only creates its own from those it finds in the internal legislations of member States, but also it readily turns to standards present in the European Convention on Human Rights(42).

Beyond principles and standards a certain amount of criteria can be found, elaborated from standards and which have become principles of interpretation of European law. This is true of principles of legality (access to the law, precision, predictability), of legitimacy (protection of individuals and their rights and liberties, guarantee of the authority and impartiality of power, public utility, public interest), of necessity (the appropriate and totally necessary character of restrictive measures), of respect of the democratic spirit (the preeminence of the law, legality and effective judiciary guarantee, tolerance, respect for minorities)(43). Yet such principles as these have lead authors to think of European law in terms of a different outline.

b) There are also attempts at adapting traditional techniques.

Having, for example, acknowledged that "the multiple is literally unthinkable if one is limited to traditional logics of law"(44), Mireille Delmas-Marty appeals to a dialogical order(45), to a legal thought of vagueness, referring by this expression to an aptitude to thinking and ordering the multiple , without, by doing so, reducing it to unity, or abandoning it to dispersion(46). More specifically, it is a question of a "disposition to understanding ...a non-linear way ... to thinking an reasoning in imprecise, unquantative terms, to remove from one legal order to another, thus putting the multiple in order, but avoiding the dispersion, incoherence and rupture which threaten all types of pluralism, without reducing it to one, to the unique order, which easily leans towards totalitarianism..."(47).

What is the nature of this "vagueness" of law? There is nothing to do with the use by certain authors - not implicated in these problems of pluralism at the heart of European law - of the notion of fuzziness(48). For them, the question is acknowledging an aura of vagueness a "shadowiness of doubt" in every legal text, over an above the clear meaning which ensues from its wording. This subject comes under the philosophical problematic of the validity of norms.

Mireille Delmas-Marty, for her part, brings her theory back to that of internormativity, "in the sense that the techniques of relation and exchange develop between norms which previously were juxtaposed" specifying that she used the theory "in a much more legal than sociological perspective, to describe the relations between legal networks and within any network between the normative sets which are simultaneously applicable"(49). Her attempt then, comes under the domain of a quest for a rationality of the multiple, a task made more necessary daily by the diversification of the networks of regulation and the paradoxical process of internationalization and localization of norms.

In other words, it is a question of managing to put terms of law "into compatibility". From this point of view, the reference to human rights appears to be a practice of rationality adapted to the very requirements of legal pluralism, whether it be national, international or supranational"(50). So that orders as diverse as international law, internal law and European Community law can find coordination by this means, until now unthinkable in the framework of traditional binary logic of "belonging" or "not belonging". The need for the "vague" then is justified "in the face of an internationalization of norms which does not tend to uniformization"(51). This theory of the "vague" aims at instituting an "ordered legal pluralism"(52).

2.2.2 A certain number of other techniques allow the interpreter/creator of European law to make use of flexibility.

For example, the search for a more material than formal conception(53); or argumentation by the absurd, or the choice of not unreasonable interpretation or yet still autonomous interpretation(54). As of concern for thoroughness, we will also add the research into neighbouring concepts, for example the "vague", the "uncertain", the "wooly" which all belong to the quest for harmony through flexibility(55). All of these strokes of inspiration are the work of legal theoreticians researching a logical way for understanding the specificality of European law.

Another way is one suggested by the legal sociologist, Boaventura De Sousa Santos, who draws attention to the fact that "we live in a time of porous legality or legal porousness,in which multiple networks of a legal order force us constantly to make transitions or to trespass. Our legal life consists of the intersection of different legal orders, that is interlegality. Interlegality is the phenomenological counterpart of legal plurality, which means that it is the second key concept in a postmodernist conception of the law"(56). It is true that the partners of a European law, instead of living by the logic of exclusion inherited from modern philosophy, could take example from these current legal orders which sometimes live in conviviality as numerous studies by legal sociologist show.

There is another wind of change which blows in our direction, this time from sociology. It talks in terms of the "ebb and flow of social regulation"(57). It is true that not only is the study not specifically attached to the subject of European law, but that until now it has never really made any specific reference to it. It is, however, one of the theories which could best give account of the logic of flexibility applied to legal orders, present in Europe.

It is a question of applying to the subject, the principle, according to which "the functioning and the reproduction of complex social systems are established in conformity with a social regulation made up of rediscovered balances, but also of tensions, ruptures and contradictions, provoked by the multiplicity of authorities and of social actors, as well as by the plurality of social stratagems in operation"(58).

Instead of polarizing the attention of the observer on the ambiguity of each national legislation in relation to European law. Instead of speaking in terms of an alternative to or the conflicts of these legislations, th sociologist puts the emphasis on another ambivalence and another alternative. Observing law at work in society, he locates in it, in fact an alternative ebb and flow of the legal regulation and of the social regulation regarded as two sides of the same coin. This is where the real ambivalence of this global regulation lies.

In other words what is important in the construction of a European law is not so much to demand national legislations to be in harmony, or that construction be executed by means of integration or the use of flexible techniques, but to recognize spaces where legislation could usually give itself up to another type of regulation than that by law. The whole domain of social politics, which has been studied so much nowadays by legal sociologists provides exemplary material in which legislation and other forms of regulation happily share common ground. The more the part played by the intervention of law in the unification of Europe is reduced, the fewer difficulties for unification will arise. The more it is shown on a European level that non-legal regulations are possible, real and effective, the more the European authorities will be able to give elegant lessons to national legislators, to invite them to reduce themselves, as much as possible the place of law, thus diminishing the sources of possible conflict with a legal regulation at a European level.

2.3 - Pluralism, complexity and legal grafting.

We have to consider two different kinds of pluralism: cultural pluralism and normative pluralism.

As to cultural pluralism, the people in charge of making European law must keep in mind three facts that recent history has made patent. Firstly, it is impossible, unnecessary and unfruitful to foresee everything in matter of legal regulation. Secondly, what has to be regulated has not necessarily to be done by law.

Thirdly, it is not useful to concentrate all regulation on a European level. Only few matters need a single and uniforme European law: above all economics since economics is now managed on a worldwide not national scale. At the same time, more and more regulatory powers must be given to local communities in such a way that a lot of regulation will be handled at a regional level in the future. This could be an answer to many local expectations for more autonomy in many fields such as language, teaching, police, income-tax and why not many matters relevant traditionally to private law. Nations will remain the only way to share expenses too heavy to be backed by regions and too difficult to be managed as of now at a European level: for instance social security or uneconomic public services. Nations will also ensure a primary judicial control on local regulation in order to avoid non-conjunctions with the main legal principles in force on a European level such as human rights or democracy.

This is to say that the people in charge of decision-making at these three levels will have to manage through complexity, which implies at least acknowledgement of the autonomy of these levels and necessary recursivities from one level to another in the process of legal decision-making_.

At last as regards normative pluralism, the confrontation between European law and the laws of member states can be analyzed in terms of systems. Even more specifically, we shall be referring here to simultaneous polysystemics, that is to say the hypothesis of the co-existence at the same time and in the same place of legal systems in force. Sometimes, these systems are not competitive; they can be "in harmony". However, too often contradictions exist.

The analysis of legal systems allows a name to be found for these hypotheses, which could well be a key to comprehension. From non-contrariness of two legislations, a homotecy cannot be inferred. If the latter is not proved in the analyses, the non-contrariness is only a matter of similarity. One would do well to be wary of harmonization on this artificial foundation. Events are likely to contradict the similarity sooner or later.

In the contrary case, we will speak of similarity. In systematic language it will be said that there is homotecy precisely on the point which is ruled by legislations in conformity. It will be said that the two systems come under the same rationality, or that there is an identity of legal reasons which sustain them both(59). Here harmony goes without saying.

Inversely it is possible that the legislations do not coincide. In that case nothing allows us to conclude that the reasons which sustain these systems are divergent. It is possible that contradiction is purely formal, and stems, for example from the style of writing; it may also be that it is the result of an interpretation which is peculiar according to the social, political, economic, religious environment... But it is also equally possible that the rational referent of each of the two legislations is not the same. In this case the confrontation is serious and it is necessary to refer to the theory of legal transplants to imagine solutions.

The idea of "legal transplants" is not new. It is a theory grounded on the observation of the fact that a rule of law can, in certain conditions and certain circumstances, be transported, without great inconvenience from one law to another, to the great benefit of the borrowing law. It is not hard to realize that this theory postulates the existence of an autonomy of legal orders. If, in fact a graft can be made successfully, the supporters of this theory claim that it is because law is autonomous, independent of its environment: thus the autonomy of a legal order becomes the only condition for the success of a legal grafting(60). In other words, European law and national laws, in as much as each is supposed to belong to an autonomous legal order, may respectively borrow rules from each other: for this to happen only the good will of the legislative authorities is necessary.

So then, why does this not happen? It would be a little simple to hold the "lack of good will" of the people in charge of doing that! It is widely known that a graft succeeds only if a certain number of required conditions are met: the quality of the plant or the transplant, the quality of the ground to receive the transplant, and that of the operation itself. That some transplants have been able to succeed in the history of law does not necessarily mean that all graftings are possible in any circumstances whatever, and whatever the distance separating the lending and the borrowing legislations.

Nevertheless, it may be fruitful to speak in terms of the autonomy of law, to see what margin of manoeuvre the European legislator has in his operation of attempting to unify or harmonize the laws present. In this respect a glance at what happened to colonial laws, provides some useful clues. What State has not involved its best lawyers in the making of laws for its colonies and protectorates, or has not put them at the disposal either of young States which have recently reached independence, or of long-standing States, wishing to renew their legal apparatus. These improvised legislators had two sorts of references at their disposal: on the one hand local customs and laws; and on the other the rules of their own law, which they considered to be the most successful or achieved stage in terms of what civilization could produce in legal matters. What remains of all that several decades later? Either those legislations have been considerably modified or even swept away, or, new leaders who have established themselves on the ruins of old political systems, have taken them up as their own. If success is guaged in terms of progress, where can the success of the grafting process be found in all that? Better still, this story shows that contrary to the presumed autonomy, the legal systems are intricately linked to political life. Here lies the explanation of the maintenance or abolition of the imposed legislation, by this colonialism or imperialism of thought.

When a graft seems to have succeeded, caution is required. The apparent success can be revealed to be due merely to a replication from one system of law to another, of words, the meaning of which have changed during the transplant(61). This change in meaning may have occurred either owing to the structural differences of the donor and receiver systems or, depending on the environment. In fact, it can only be said strictly speaking that there is a graft of one system onto another if the element, as it figures in the receiving system after the graft, belongs to the same class of equivalence(62), as the element lent to the donor ensemble and that the system has not been disturbed by a change intervening in it its environment.

This leads to a paradoxical situation. In fact, in order for national laws of member states and European law - for example that of the European Community - to be able to exchange legal norms, with some hope of the grafts being successful, the "reasons" of these two legal systems must coincide. Now, if European law has the same reason as the national laws, it must be, amongst other conditions, that it rests on the same foundations. What chance is there for a European law conceived in this way to become a future law, if the national contemporary laws it imitates do not answer to the conditions of a post-modern law?

One hope lies in the fact that the legal reason of European law is different from that which sustains the national laws. According to this hypothesis, a true innovation will be possible only if all adjustments of compromise are rejected. For example an operation transplanting one law to another - European law to laws of member States, or viceversa - will not be considered as successful(63) if it leads to a confrontation the output of which would be the victory of one and the defeat of another (the famous "win/lost" dichotomy). It will be avoided that one be allowed to step down in front of another, with the latter recovering all the energy of the operation to its benefit. Lastly all idea will be removed of vaccinating one system of law by the progressive interference of antibodies drawn from attacks by the other. Innovation will be born as the creation of a new legal reason, different from the reasons of the system present, reasons which will be permitted to confront each other not in a competitive spirit but with a disposition for a cultural coalition.

It is possible to analyze many European legal decisions in this way, as the product of a coalition of cultures facing on a level of legal decision-making. By legal culture is meant not only the laws in force, but also the imaginaries and practices resting on values different from the values grounding the legal system in force, and the bearers of which act as to have them recognized. They may be right, those people who cherish the hope of seeing an appropriate European law for the future arise out of the present mass of rules, laid down as the opportunity arose. A European law able to respond to the political, social and economic requirements of the coming century in a coherent, simple clear and decisive way, would also have to take in account the complexity rid down as thshe rrshat it sivdicti,o tanlatng tto ta> We h,to take indom of speech(27 Triquestions"ures eing an sing, strictls of thethe hope of sece sition or a c ion n, Tdth="300"pleign="left">ion at a European level.

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