IDEAS home Printed from
   My bibliography  Save this paper

United They Diverge? From conflicts of law to constitutional theory? On Christian Joerges’ theory


  • Agustín José Menéndez


This working paper offers a reconstruction and critical analysis of Joerges’ conflicts theory of European Union law. It is claimed that the theory of European conflicts is structured around three key premises: first, that there are functional and normative reasons to transcend the autarchic national constitutional state; second, that the public philosophy of European constitutional law should operationalise the regulatory ideal of unity in diversity, and that this is better done by having resort to Currie’s democratic theory of conflicts of law; and third, that any European constitutional theory should be ‘grounded’ on the empirical analysis and resolution of specific supranational conflicts. This leads to a theory sensitive to the institutional implications of European integration (to Europeanisation processes of national institutions as an alternative to the European superstate, in particular through mutual recognition of legal standards and through the production of common norms in decentralized structures of which comitology is the paradigmatic example) but deeply interested in the specific problématique of constitutional and infra-constitutional European legal practice. However, the paper also finds that the theory of European conflicts, first, remains incomplete as a constitutional theory, something which comes a long way to explain its downplaying the genuinely federal dimension of European integration; second, fails to provide a satisfactory account of the legitimacy foundations of Community law (as it does not engage either with constitutional beginnings nor with political constitutional transformation); and third, underestimates the structural implications of the combination of the doctrines of primacy, direct effect and mutual recognition, in particular, the resulting structural bias against redistributive politics. All these three factors lead to lack of full attention to the normative and functional sources of stability of European integration and European Union law.

Suggested Citation

  • Agustín José Menéndez, 2011. "United They Diverge? From conflicts of law to constitutional theory? On Christian Joerges’ theory," ARENA Working Papers p0348, ARENA.
  • Handle: RePEc:erp:arenax:p0348

    Download full text from publisher

    File URL:
    File Function: Full text
    Download Restriction: no

    More about this item


    comitology; European law;


    Access and download statistics


    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:erp:arenax:p0348. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Sindre Eikrem Hervig). General contact details of provider: .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.