IDEAS home Printed from
MyIDEAS: Log in (now much improved!) to save this paper

United they diverge? From conflicts of law to constitutional theory? On Christian Joerges’ theory

Listed author(s):
  • Agustín José Menéndez
Registered author(s):

    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.

    If you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.

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

    Paper provided by RECON in its series RECON Online Working Papers Series with number 6.

    in new window

    Date of creation: 15 Feb 2011
    Handle: RePEc:erp:reconx:p0091
    Contact details of provider: Web page:

    No references listed on IDEAS
    You can help add them by filling out this form.

    This item is not listed on Wikipedia, on a reading list or among the top items on IDEAS.

    When requesting a correction, please mention this item's handle: RePEc:erp:reconx:p0091. 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: (Marit Eldholm)

    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.

    If references are entirely missing, you can add them using this form.

    If the full references list an item that is present in RePEc, but the system did not link to it, you can help with 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 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.

    This information is provided to you by IDEAS at the Research Division of the Federal Reserve Bank of St. Louis using RePEc data.