Rehabilitating Social Conflicts in European Public Law

Published date01 September 2012
Date01 September 2012
Rehabilitating Social Conf‌licts in
European Public Law
Marco Dani*
Abstract: Subject to conditions that public law can secure, social conf‌licts can be nor-
matively appealing for their dividend in terms of dynamism, identity and stability. While
this notion was key to post-World War II European public law, it no longer holds true
now that social conf‌licts are increasingly marginalised by the expansion of supranational
law and its consensus culture. However, far from disappearing social conf‌licts re-emerge
as challenges to the current institutional setting, even despite the policy of constitutional
gesture undertaken by EU institutions. This paper tracks the role of social conf‌licts in
European public law and argues that as long as EU politics fails to embrace a culture of
social conf‌licts, challenges to the authority of EU law can be normatively justif‌ied.
I Introduction
The relationship between social conf‌licts and European public law is a classic in
constitutional law literature for one cannot conceive of the European public law
tradition without considering the def‌ining role of social conf‌licts in political and
institutional structuring. Interest on such topic seems all the more justif‌ied now that
Europe grapples with social conf‌licts increasingly challenging its institutional foun-
dations. Recent developments in European integration reveal evident diff‌iculties of
public law in recognising and mediating social conf‌licts connected to supranational
policy making. This certainly echoes longstanding arguments on the legitimacy def‌icit
of the EU. Yet, this paper is not going to reiterate those well-known claims nor offer
proposals of institutional reform. Although sharing some of the concerns inspiring
this literature, this contribution presents essentially an account for how the relation-
ship between social conf‌licts and European public law has grown troublesome. With
this effort in explanation and contextualisation, come also a couple of additional
remarks. It is argued that that the rehabilitation of social conf‌licts is essentially a
matter of political culture and organisation for which law and institutional engineer-
ing are hardly viable substitutes. As a result, as long as European politics fails to
embrace a culture of social conf‌licts, challenges to the authority of EU law appear
* Senior Lecturer, Faculty of Law, University of Trento.. I am grateful to Jonathan White, Giulio
Itzcovich, Jan Komárek, Barbara Guastaferro and all the participants to the Dahrendorf Symposium
and the NYU seminar on EU law and conf‌licts for comments and suggestions on earlier drafts of this
paper. Special thanks go to Damian Chalmers for his invaluable support in streamlining my arguments.
All errors are mine.
European Law Journal, Vol. 18, No. 5, September 2012, pp. 621–643.
© 2012 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
normatively justif‌ied, at least if legitimacy is construed in accordance with the Euro-
pean constitutional tradition of conf‌licts mediation.
This argument unfolds on the basis of a social theory insight on conf‌licts. It starts
with the claim that conf‌licts are ubiquitous and ineluctable and that, at least under
certain conditions that public law can ensure, they can contribute to the dynamism,
identity and stability of societies. Such theoretical insight is then employed to develop
a conf‌lict-based characterisation of European public law. This proceeds by looking at
its two constitutive components, namely national constitutional democracies and
supranational law. It is argued that both of them can be viewed as rather successful
attempts in the institutionalisation of, respectively, social conf‌licts and interstate
conf‌licts related to economic mobility. Inspired by such different concerns, national
constitutional democracies and supranational law have given rise to distinct institu-
tional settings marked by signif‌icant divergences as to the role of social conf‌licts.
While constitutional democracies enhance social conf‌licts as a factor of socialisation
and progress, supranational law nurtures a culture of consensus in which social
conf‌licts are neglected and regarded mainly as dysfunctions hindering policy making.
However, if initially the two projects have coexisted by virtue of a rather clear
material separation and evolved in a highly original form of coordinated government,
more recently this equilibrium has been undermined. Due to increasing demands
of structural change in respect of national policy making, supranational law has
expanded its material scope, imposing its consensus culture and, correspondingly,
marginalising social conf‌licts. Nevertheless, during the same period social conf‌licts
have not disappeared but, on the contrary, have re-emerged as challenges to the
current institutional setting. It does not seem at the moment that this eruption
of social contestation has shifted supranational politics away from interstate con-
f‌licts and consensus culture. This is witnessed also by the main reactions to social
discontent by EU institutions consisting essentially in conservative responses such as
the incorporation of a ‘culture of fundamental rights’ and a ‘culture of consultation’
within the regulatory structures of supranational law. As a result, given the failure
to embrace a culture of social conf‌licts at EU level, it seems that the authority of EU
law can be questioned in the light of European constitutional culture of conf‌lict
mediation. Only if social and political movements will be able to organise the social
aggregates resulting from the operation of supranational integration and translate
their conf‌licting interests in mobility and social justice into competing political
agendas will the EU be in the position of rediscovering the European tradition of
conf‌lict mediation and, as a ref‌lection, developing a strong constitutional culture.
II The Value of Conf‌lict and Role of Public Law
A broad consensus exists in social theory on the notion that conf‌lict, alongside
integration, is an ineluctable and def‌ining aspect of every society.1Indeed, if it is
commonly accepted that even the most rudimentary form of societal organisation
requires that fundamental divisions among its members be overcome, there is also
broad agreement on the fact that, once such prerequisite is achieved, irreducible
1G. Pasquino, ‘Conf‌litto’, in N. Bobbio, N. Matteucci and G. Pasquino (eds), Il Dizionario di Politica
(Torino: UTET, 2004), at 158. See also G. Simmel, ‘The Sociology of Conf‌lict. I’, (1904) 9 American
Journal of Sociology 491.
European Law Journal Volume 18
622 © 2012 Blackwell Publishing Ltd.

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