The Identity of European Law: Mapping Out the European Legal Space

Abstract

The main purpose of this discussion is to supply some content to the concept of the ‘European legal space’ at the turn of the twentieth century. The term ‘legal space’ is used in preference to ‘legal system’ or ‘systems’ in order to convey a sense of the complex, non‐hierarchical, overlapping, interlocking and evolutionary character of contemporary European legal phenomena. A number of evident legal orders may be identified within the overall European space: those of the EC, the EU, the EEA, the Council of Europe and the OSCE, although to refer to some of these as ‘orders’ may be misleading, by implying too much in terms of a centrally determined structure. It is also possible to point to less evident legal ordering, such as the process of norm exportation contained in the Europe Agreements concluded between the EU and individual non‐Member States, or the kind of order resulting from transatlantic co‐operation in fields such as criminal justice (which also challenges the description of ‘European’). In juristic terms, the argument here confronts the primacy traditionally accorded to the sovereign state in the field of law‐making, and draws upon two non‐juridical models of analysis: that of multi‐level governance, as used by political scientists to indicate a shift away from the exclusive authority and legitimacy claimed by sovereign states; and the biological model of catalytic closure, used to indicate evolution through a process of spontaneous reactions within a body. Both models may be usefully employed to probe the dynamics of European legal ordering at the close of the Twentieth Century.