Statecraft, the Market State and the Development of European Legal Culture

Abstract

We consider whether the theory of the market-state can explain the features of a common European legal culture. Our thesis is that there is an extant EU legal culture, one which developed through the Europeanisation of law. The distinct European feature of this legal culture is the enforcement of market-state features in EU law. The concept of legal culture needs to be untied from a communitarian view by which culture “provides this group with its identity by establishing internal coherence and external difference, as well as relative consistency over time”. Culture hence needs to be viewed through a decentralized lens. We will prove our thesis on assorted examples from EU administrative, contract, and competition law. As a nation-state heritage, EU law has developed a legal culture which does not follow purely market-state rationales, but rather balances these rationales against nation-state features such as human rights.