Integration through de-legislation? an irritated heckler

This paper is about the difficult relationship between law and governance in the European Union. The turn to governance which the Prodi Commission has forcefully propagated is a continuation of much older developments. By means of these developments the European Community (now Union) has sought to compensate for the inadequacies found within its institutional design (in particular, within the Community Method); a design which has had constantly to be adapted to the ever more intense and complex regulatory needs of the integration project. These constant institutional innovations were functional necessities and the turn to governance seems to be irresistible and irreversible. Such innovation, however, is not easily reconcilable with the Union’s commitment to the rule of law, or with the very idea of law-mediated, politically accountable rule. These tensions are addressed in two steps. The first concerns the national level and is a mainly methodological reminder: many of the governing techniques that are today defined as governance can also be found within national systems and were, furthermore, the subject of intensive debate in the 80s within discussion on proceduralizing and reflexive methodologies which sought to capture the specifics of a – then so perceived – post-interventionist law. The second step concerns the European Union. Here, a methodological approach is insufficient. It must instead be accompanied by a re-conceptualisation of European law as a new type of supranational conflict of laws. This law seeks to realize what the Constitutional Treaty had called the “motto of the Union”, namely a reconciliation of “unity and diversity”. It is submitted that a re-conceptualisation of European law in terms of conflict-of-laws would not only help to rescue the rule of law but would also increase our capacity to cope with the unresolved substantive tensions within the European polity.

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