In‐Between Worlds: Marleasing and the Emergence of Interlegality in Legal Reasoning

• Published date: 01 November 2005
• Date: 01 November 2005
• Author: Marc Amstutz
• DOI: http://doi.org/10.1111/j.1468-0386.2005.00286.x

*Earlier versions of this paper were presented at workshops at the European University Institute in Flo-

rence and at the Faculty of Law of the Johann Wolfgang Goethe-Universität in Frankfurt-am-Main. For

critical comments I would like to thank Christian Joerges, Gaby Müller, Gerard Rowe, Fabian

Steinhauer, Gunther Teubner, Franz Werro, Dan Wielsch, and Rudolf Wiethölter.

1B. De Sousa Santos, Towards a New Legal Common Sense: Law, Globalization, and Emancipation, 2nd

edn (Butterworths, 2002), at 437.

2De Sousa Santos, op. cit. note 1 supra,at 437.

In-Between Worlds: Marleasing and

the Emergence of Interlegality in

Legal Reasoning

Marc Amstutz*

Abstract: Lawmakers and scholars are so busy looking for new ways to develop a Euro-

pean private law that they are failing to see the virtues of an already existing private law

harmonisation tool. This tool is the requirement of interpretation in conformity with direc-

tives as it has been designed by the Court of Justice in Marleasing and its progeny. In this

paper, it is submitted that this case law operating at the level of rules on legal reasoning,

and not at the level of substantive law, is a far more sophisticated means of private law

harmonisation than all the measures discussed in the last years. Namely, the requirement

of interpretation in conformity with directives is allowing the Common Market to develop

coherently without neglecting the significance of national legal cultures. How this difficult

equilibrium between harmonisation and legal pluralism might be maintained by the tool

the Court of Justice developed in Marleasing is explained in this paper with the help of

evolutionary jurisprudence.

IInterlegality in European Private Law

That we are living in a porous legality, in ‘multiple networks of legal orders’,1is today

no longer dismissed as a silly whim of legal anthropologists. Interlegality,a term coined

by de Sousa Santos,2is a reality. Given the now undeniable linkages among legal dis-

courses, the question can only be: How are we to deal with interlegality? A good context

for discussing this issue is European private law. It raises a problem which, at first sight,

might seem unusual in a private law context, but which is characteristic for bodies of

law operating not in,but between national states, namely, that bodies of law, such as

the European directives,merely harmonise national legal orders without replacing them

European Law Journal, Vol.11, No. 6, November 2005, pp. 766–784.

© 2005 The Author

Journal compilation © 2005 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ,UK

and 350 Main Street, Malden, MA 02148, USA

with unified rules applicable homogeneously in all the countries concerned.3I would

call this the problem of constitutionalysing interlegality.Here, I treat the term consti-

tution neither in a strictly legal, nor in a strictly political, but chiefly in a sociological

sense.4In this specific sense, a constitution is to be understood as a tool of integration

of legal norms into real life processes.As Smend has put it, integration is the generalised

adoption of legal norms by a group of people leading them to experiencing these norms

as a common good. He spoke of the ‘social synthesis’ of legal nor ms.5The constitu-

tionalisation problem of interlegality can then be described as follows: How is the inte-

gration of norms, emerging in a context located at the interstices of the traditional

State-based polities, to be achieved? How can their ‘social synthesis’ succeed?

These questions have for some time been discussed in the European Community6,

notably under the heading of the governance of a ‘sovereignty association of a special

nature’7.Ordo-liberalism and neo-functionalism long set the tone.8More recently,

however, various proposals have lent the debate new impetus: deliberative suprana-

tionalism,9law’s polyarchy,10 a universal code of legality,11 non-majoritarian transna-

tional institutions,12 etc. Hopes centre particularly around attempts to make use of

patterns drawing on democracy theory.13

These theoretical endeavours have in common that they struggle with the difficulties

of translating the democracy patterns into a polycontextural ‘language’: ultimately, the

democratic state based on the rule of law and its corollaries (separation of powers,

human rights etc.) are concepts with hierarchical connotations.14 Endeavours to

November 2005 Marleasing and the Emergence of Interlegality in Legal Reasoning

© 2005 The Author 767

Journal compilation © Blackwell Publishing Ltd. 2005

3On the concept of ‘harmonisation’ of European private law, see W. van Gerven, ‘Harmonization of

Private Law: Do We Need It?’, (2004) 41 Common Market Law Review,505–532, at 505–507.

4For the question as to how the concept of ‘constitutionalisation’ is to be understood, see the overview

in U. Haltern, ‘Pathos and Patina:The Failure and Promise of Constitutionalism in the European Imag-

ination’, (2003) 9 European Law Journal,14–44, at 19–24; see also A. Dashwood, ‘The Relationship

Between the Member States and the European Union/European Community’,(2004) 41 Common Market

Law Review,355–381, at 376–380.

5R. Smend, Staatsrechtliche Abhandlungen und andere Aufsätze (Duncker & Humblot 1955), 149.

6See, e.g., A. Fischer-Lescano, ‘Globalverfassung: Verfassung der Weltgesellschaft’, (2002) LXXXIX

Archiv für Rechts- und Sozialphilosophie,349–379, at 350 with further references.

7M. R. Lepsius, ‘The European Union as a Sovereignty Association of a Special Nature’, in C. Joerges,

Yves Mény and J. H. H. Weiler (eds), What Kind of Constitution for What Kind of Polity? Responses to

Joschka Fischer (European University Institute, 2000), 212–221; see also Dashwood, op.cit. note 4 supra,

at 355–357.

8See C. Joerges, ‘Good Governance in the European Internal Market: The Two Competing Legal Con-

ceptualisation of European Integration and their Synthesis’, in A. von Bogdandy et al. (eds), European

Integration and International Coordination: Studies in Transnational Economic Law in Honour of Claus-

Dieter Ehlermann (Kluwer, 2002), 219–242.

9C. Joerges, ‘The Impact of European Integration on Private Law: Reductionist Perceptions, True Con-

flicts and a New Constitutional Perspective’, (1997) 3 European Law Journal, 378–406.

10 O. Gerstenberg, ‘Law’s Polyarchy: A Comment on Cohen and Sabel’, (1997) 3 European Law Journal,

343–358.

11 K. Günther, ‘Rechtspluralismus und universaler Code der Legalität: Globalisierung als rechtstheoretis-

ches Problem’, in L. Wingert and K. Günther (eds), Die Öffentlichkeit der Vernunft und die Vernunft der

Öffentlichkeit: Festschrift für Jürgen Habermas (Suhrkamp, 2001), 539–567.

12 G. Majone, ‘Nonmajoritarian Institutions and the Limits of Democratic Governance: A Political Trans-

action-Cost Approach’, (2001) 57 Journal of Institutional and Theoretical Economics, 57–78.

13 See the overview in T. Cottier and M. Maya, ‘The Prospects of 21st Century Constitutionalism’, in

G. Kohler and U. Marti (eds), Konturen der neuen Welt(un)ordnung: Beiträge zu einer Theorie der

normativen Prinzipien internationaler Politik (de Gruyter, 2003), 120–162.

14 This issue is discussed in P. Eleftheriadis, ‘Cosmopolitan Law’, (2003) 9 European Law Journal,

241–263.