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    The limits of the 'conflicts approach': law in times of political turmoil

    Everson, Michelle (2011) The limits of the 'conflicts approach': law in times of political turmoil. Transnational Legal Theory 2 (2), pp. 271-285. ISSN 2041-4005.

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    Abstract

    Over the last decade, Christian Joerges has elaborated a theory of law, or ‘conflicts law approach’, which is argued to be appropriate to the legal governance of the European Union. Built upon a primary constitutional prescription—the notion that the EU's legitimacy derives from its ability to compensate for the ‘democratic deficit’ posed by the exclusionary characteristics of the nation state—the conflicts law approach demands that EU law promote deliberative democratic processes within Europe that can balance the interests of member states against each other and against the supranational interests of the Union. Predictably, the approach has accordingly also attracted criticism, in particular from those who argue that its procedural mission of balancing technocratic against political interest is at best misguided and at worst impossible. In reviewing the conflicts law approach and tracing it back to its heritage within critical legal thinking, this article both rebuts such critique—the conflicts approach is necessarily modest in its efforts to promote ‘deliberate supranationalism’—but also highlights areas where the theory must still be modified if it is to survive in an unprecedented era of social dynamism. Processes of European integration and globalisation have also called into question the integrative functions of nation states. To this degree, the conflicts law approach must widen its horizons in order to address new conflicts between established political orders and novel political communities, some of which may have yet to be formed.

    Metadata

    Item Type: Article
    School: Birkbeck Schools and Departments > School of Law
    Research Centre: Innovation Management Research, Birkbeck Centre for
    Depositing User: Sarah Hall
    Date Deposited: 15 Mar 2016 14:51
    Last Modified: 06 Dec 2016 10:07
    URI: http://eprints.bbk.ac.uk/id/eprint/14695

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