One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This paper argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly (...) endorsing monism. The integrity and coherence of European law is best preserved by considering that both the national legal order and the international or European legal orders adopt sophisticated views of their own limits. (shrink)

From the viewpoint of the constitutional crisis in Europe, slow UN reforms, difficulties implementing the Kyoto Protocol and the International Criminal Court, and tensions between human rights and trade, Mireille Delmas-Marty's 'journey through the legal landscape' of the early years of the 21st century shows it to be dominated by imprecision, uncertainty and instability. The early 21st century appears to be the era of great disorder: in the silence of the market and the fracas of arms, a world overly fragmented (...) by anarchical globalisation is being unified too quickly through hegemonic integration. How, she asks, can we move beyond the relative and the universal to build order without imposing it, to accept pluralism without giving up on a common law? Neither utopian fusion nor illusory autonomy, Ordering Pluralism is her answer: both an epistemological revolution and an art, it means creating a common legal area by progressive adjustments that preserve diversity. Since an immutable world order is impossible, the imaginative forces of law must be called upon to invent a flexible process of harmonisation that leaves room for believing we can agree on - and protect - common values. 'The book is timely and relevant to the practical concerns of those who work with, and within, the legal system. We must thank Professor Delmas-Marty for her fine work.' From the foreword, Stephen Breyer, Washington, DC. (shrink)

On normative order -- On institutional order-- Law and the constitutional state -- A problem : rules or habits? -- On persons -- Wrongs and duties -- Legal positions and relations : rights and obligations -- Legal relations and things : property -- Legal powers and validity -- Powers and public law : law and politics -- Constraints on power : fundamental rights -- Criminal law and civil society : law and morality -- Private law and civil society : law (...) and economy -- Positive law and moral autonomy -- On law and justice -- Law and values : reflections on method. (shrink)

This article uses Hans Kelsen's theory of a legal system to take a fresh look at European Community law, and the relationship between the European Community, its Member States, and international law. It argues that the basis of the Community's legal legitimacy is indeterminate, and offers a model to accommodate that indeterminacy. This model is founded on a constructivist approach suggested to be particularly useful in the EC context. Using this approach, it is argued that the concepts of system, autonomy (...) and sovereignty in the Community can only be understood through the recognition of a plurality of viewpoints, and that it is crucial, in describing the Community, to distinguish between a concept per se and the choice to adopt that concept. (shrink)

This is a controversial work of applied legal theory, addressing urgent contemporary questions about law and the state, about the character of the UK as a state, and about the juridical character of the European Union.

As we move towards a more global legal community, often with accompanying injustice and violence, Mireille Delmas-Marty demonstrates an urgent need to reconstruct the national and international legal landscapes. She argues that legal reasoning can be applied to concepts such as human rights for European citizens in the new world order. The book will be of interest to all comparative European lawyers, and to social scientists and legal theorists grappling with contemporary issues in legal pluralism and globalization.

Resorting to the Rule of law within the traditional environment of international law is generating difficulties, especially when circumstances require to square the circle by accommodating normative claims connected to State legal order, fundamental rights, democracy. In recent cases brought before supranational courts, like the European Court of Justice (e.g. Kadi and Al Baarakat), or domestic courts like US Supreme Court (e.g., Hamdan), unsurprisingly, the import and notion of the Rule of law have been interpreted in such ways as to (...) reveal the uncertainty surrounding the concept and the rather idiosyncratic or instrumental use of it. Through the analysis of such instances, this article proposes a restatement of the rule of law that better explains its use beyond the state borders. Then, it shows how the relation between different orders as a matter of fact does not obey to some monist hierarchy and not even just reflects the logic of self contained systems' dualism. Being the autonomy of legal orders a vital contemporary reality, confrontation between them and with the international law appears to be replacing formal primacy of sources as well as blind or dogmatic closure, by content dependent constitutional assessments. In this connection, a road taken in European environment shows that communicative pluralism can embark into a practice of giving reasons inherently capable of producing common standards, the rule of law, and thin lines of principle. All of them are ingredients which might finally evolve into a further rule of recognition for the international law order. Table of contents: 1. Introduction and premise. 2. Superimposing one rule of law? 3. Some hints on which Rule of law. 4. Theoretical analysis and living law shortcomings. 5. Towards content dependent assessments. 6. Building on the rule of law as a third chance? 7. A practice theory of recognition: re-starting from a Hartian background. (shrink)