The case for pluralism advanced in this paper forms part of a broad political debate about governance in the Community: integrationism versus subsidiarity. Integrationism was once seen as something of a loyalty test; today pluralism is squarely on the political agenda. We are becoming accustomed to the concept of subsidiarity introduced by Art 3(b) of the TEU and (more gingerly) to the "multi-speed Europe" and "variable geometry" of the ToA. Treaty status is making the ideas respectable. If the Community is to embrace within its boundaries a new swathe of entrants with different cultural traditions, political expectations and capabilities, acceptance of diversity will become a necessity. It will be essential to treat the Community as a confederal association, weighted to the bottom level 105. Co-operative political activity will be based on strong existing national and sub-national structures which legitimate it.
The purpose of this chapter is to link this wide, general debate about constitutions and governance to a narrower debate, conducted mainly between lawyers, about harmonisation and convergence of legal systems. In so doing, it has questioned the use of law as an instrument of political integration, arguing that legal integration in a political vacuum tilts the balance of power from government and legislature unacceptably far towards the judiciary, modifying in the process relationships between the EU and Member States (the double perversion of democracy.) Implicitly, the chapter also questions law's integrative force. Paradoxically, legal integration may be disintegrative. Essentially parasitic in nature, the EC legal order balances precariously on the props of national legal orders. Clashes between the orders which cause repercussions on national constitutions will in time rebound directly on the Community.
Again, the chapter has attacked both the vision of a "level playing
field" of procedural rights and the concept of "levelling up" as essentially
simplistic and misleading ideas. The realities which underlie the legal
doctrines of equality and efficiency demand a more complex and sophisticated
argument about the commensurability of rights and values. Arguing that legal
systems are culturally linked, the chapter notices differing attitudes to legal
remedy and judicialisation. The first division of competencies between national
legal orders and the EC was sensitive to these differences but a blurring of
the boundary has been noted. Border raids in the name of integrationism have
led to expanded competence for EC law and its progenitor, the ECJ.
The ECJ was designed as an international tribunal with a strictly limited remit but it made short work of this restricted mandate. It soon moved to establish the supremacy of the law which it administered and had ruled itself alone competent to administer, while alongside it fitted itself out with a toolkit of powerful remedies, used to bind the legal orders of the Member States. A model of law emerged more formalist and more coercive than the national legal orders of any Member State would offer and arguably ill-adapted to the non-statal constitutional context in which it has to operate. The supremacy principle represents the installation at the heart of a postmodern "Community of Nations" of a Kelsenist conception of legal sovereignty. Pooled sovereignty ought to imply the acknowledgement of "co-ordinately valid legal systems" 106 - the EC legal system as one among equals.
But if it is proving difficult to move far from the concept of sovereignty in the political arena, then it is harder still to eliminate it inside the legal order. The theory of law as an instrument of command and coercion has qualities of endurance; the tiger is not dead but sleeps. The rush to "constitutionalise" human rights and to extrapolate general constitutional principles has permitted the ECJ to buy into the classic hierarchy of legal norms. Rights, in Dworkin's inimitable phrase, are "trumps" through which courts gain power and legitimate their own claim to sovereignty. And sovereignty is very much the business of courts.
A plural legal framework not only implies respect for national legal orders but also a non-hierarchical method of mediating conflict. Writing in a federal context, Fritz Scharpf spells out the consequences of a plural adjudicative regime 107:
[T]he recognition of a bipolar constitutional order prevents the one-sided orientation of judicial review towards the enumerated powers of the central government, which is otherwise characteristic of federal states. It requires the court to balance competing jurisdictional claims with a view not only to their substantive justification, but also to the manner in which the powers are exercised. The criterion is mutual compatibility, and the characteristic outcome is not the displacement of one jurisdiction by the other, but the obligation of both to choose mutually acceptable means when performing the proper functions of government at each level.
The initial intention for the EC was of non-confrontational, non-hierarchical, co-operative judicial machinery; under EC Art 177 (now 234), the ECJ enjoyed a consultative function, advising in case of doubt on the meaning of EC law. Later, as the Court's integrationist culture and mindset hardened, a distorted vision surfaced of a "quasi-federal instrument for reviewing the compatibility of national laws with Community law" 108. The erstwhile adviser had stepped into the untenable position of partisan umpire - Scharpf's asymmetrical monster - and had into the bargain acquired enforcement powers. There was over-use of a reference procedure which had shown itself insensitive to the balancing exercises for which it came to be used 109. There is need for a true "judicial dialogue", with an opening for national courts to indicate potential impact of decisions on the national legal system. This would force them to articulate their reasoning in the language of that system, reinforcing domestic accountability by submitting judgements to scrutiny in the national arena where their impact needs to be weighed and tested. The ground rule of national procedural autonomy needs to be reinstated, with departures from that rule justified by reference to the twin principles of proportionality and subsidiarity.
The argument of this paper has been presented somewhat starkly. There is room for a median position between the extreme poles of integrationism and unregenerate pluralism. There are today signs that the ECJ is beginning to understand this. Recent case law is more tentative, more thoughtful and more sensitive to national sensibilities. The Court has recently suggested too that national courts should "apply Community law themselves, and not... resort too hastily to the solution afforded by a reference to the Court of Justice" 110. These could be signs of a new judicial mindset which would welcome legal diversity manifested in "co-ordinately valid legal systems". This welcome development in no way undercuts the argumentation of this chapter. Case law can change. It is a pluralist mindset which needs to be permanently installed at Luxembourg.
Essentially the case for harmonised judicial protection rests on theories of the market 111
If a market is to flourish, disputes arising out of business conducted in the market must be resolved consistently with one another, and that requires more than a uniform substantive law. Distortion is bound to occur if the mode of litigation, with all that that implies both by way of procedural techniques and by way of their implications for costs, delays, appeals, enforcement of judgements and so on, varies substantially from one place to another. The idea of a single 'internal market' requires for its complete realisation a single system for the judicial resolution of disputes.
Surely this is a thin argument to set against the deep values of heritage, legal culture and constitutional legitimacy?
105 P. Eleftheriadis, "Begging the Constitutional Question" (1998) 36 Journal of Common Market Studies 255.
106 N. MacCormick, "Liberalism, Nationalism and the Post-sovereign State", in R. Bellamy and D. Castiglione (eds) Constitutionalism in Transformation: European and Theoretical Perspectives, Blackwells, 1996.
107 F. Scharpf, "Community and autonomy: multi-level policy-making in the European Union" (1994) 1 Journal of European Public Policy 219, 225.
108 F. Mancini and D. Keeling, "Democracy and the European Court of Justice", above note 62 at 184.
109 A point developed by T. de la Mare, "Article 177 and Legal Integration", in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford University Press, 1998, at 227.
110 Court of Justice, "The Future of the Judicial System", above note 78, p. 24. Contrast C. Barnard and E. Sharpston, "The Changing Face of Article 177 References" (1997) 34 Common Market Law Review 1113; D. O'Keeffe, "Is the Spirit of Article 177 under Attack? Preliminary References and Admissibility" (1998) 23 European Law Review 509.
111 T. Jolowicz, "Introduction", in H. Storme (ed), Approximation of Judiciary Law in the European Union, Kluwer and Martinus Nijhoff, 1994, p. xiii.