Comparative law can be a very rich resource to reflect on the contemporary challenges of EU legal scholarship. It has always been a core basis for the development of EU law itself. At a time of increasing contestation of EU law and integration, it may come to the rescue again as an ideal means to account for diversity in Europe. EU legal thinking still fails to take legal diversity seriously, and yet, not only the long legacy of legal comparison in the European context has not offered a solution, but it is also part of the problem. Socio-legal comparative research, specifically, can give valuable insights into the reasons for the disconnect between EU law and the societies to which it applies, but also – and importantly – into possible ways to reconnect.
Taking Legal Diversity Seriously. EU lawyers tend to perceive legal diversity as a shortcoming, “a modus deficiens” of an ideally uniformly applied and interpreted EU law. Even as they would readily accept that there are differences in the interpretation and application of EU law, these differences are not taken seriously as relevant EU legal knowledge. This is the result of the nexus in EU legal thinking between legal uniformity and integration. While EU law accounts for diversity across the Member States, difference and resistance have been largely perceived as symptoms of an early stage in the evolution of the EU towards its constitutional telos, of a lack of maturity in national processes of Europeanisation, or as spaces that can be tolerated under EU law’s cloak of uniformity. EU law does accommodate diversity through a range of techniques, such as differentiated integration, minimum harmonisation, derogations, and experimentalist governance, but these all operate on EU law’s own terms. EU law remains uniform legal knowledge, founded on the premise of a coherent and autonomous legal order. The reality of diversity has, however, recently taken a radical form, as ‘rebellious’ Member States have followed authoritarian trajectories that imperil the project of integration. While this development has triggered the EU institutions’ recent turn to values and identity, both that reality and this response are symptomatic of a long-standing failure to account for legal diversity in EU legal thinking.
Beneath these conspicuous developments, it is today clear that neither legal diversity has impeded the construction of a supranational legal and institutional system, nor has legal convergence brought about the social and political integration that was assumed to be in the cards. Against this background, we propose a renewed shift in perspective to see difference and resistance no longer as limits to integration but as features that are inherent to the European project and to its law. In a sense, this is far from novel, if what we mean by this is that different legal traditions have provided rich resources for EU legal argumentation. This is an important point (which we share), but what we mean to convey with the focus on diversity is more fundamental: if various actors adhered to the European project and accepted to mobilise EU law, they were not always aspiring to the construction of a common market or to “an ever closer union between the peoples of Europe”. In different contexts and at different moments in history, the use of EU law has been inspired by and has promoted individual or collective projects of emancipation, judicial strategies of liberalisation, legal and political elites’ modernisation policies or efforts to consolidate democracy, which are themselves conceived of and constructed within local legal cultures or forms of legal consciousness.
Taking EU legal concepts and doctrines for granted might conceal past struggles for the content of EU law and the trajectory of European integration. For example, while the dream of Social Europe might seem utopian or secondary for those who master the technicalities of EU legal knowledge today, it was not so aberrant for the European Left during the long 1970s. Taking legal diversity (more) seriously can thus advance our understanding of EU law and of its integrative dynamic. It might expose as partial or parochial dominant interpretations of EU law and mainstream visions of EU integration. It may reveal, for example, that the idea that Article 2 TEU values “define the very identity of the European Union as a common legal order” is, in itself, one meaning of EU law among others, articulated by the EU Court, shared by the Commission and specific circles of expert lawyers, legal academics or political scientists. We need to reflect on the capacity of EU law to express different claims, worldviews and identities from those of the Euro-lawyers who invented and promoted it. There is a widely shared intuition that EU law would have much to gain from closer attention to social practices and to the lived experiences of those that it affects. This is expressed in multiple calls to decolonise EU law, to bring it “down to earth”, closer to European Society and to forms of life in Europe. In this endeavour, socio-legal comparatists’ attention to local knowledge, mentalities, worldviews and meanings can be very rich resources for the study of EU law. Adopting such an approach, however, requires breaking with a long tradition of legal comparison in EU legal studies.
Challenging the Functional Legacy in Comparative European Law. While the development of EU law as a normative system and as an academic discipline has been deeply anchored in comparison, we still lack a nuanced account of legal difference within Europe. For decades, the search for commonality among national concepts and the focus on the creation of an “overarching frame of reference” has driven the development of EU law, fuelled also by the “common constitutional traditions of the Member States” as an interpretative device used by the Court of Justice. From this perspective, legal comparison in the European context went hand in hand with the practical commitment of EU legal scholarship to the construction of a common market and polity. Even when not directly involved in system-building, many comparatists have presented the development of EU law as a story of national convergence, cross-fertilisation and (more or less successful) legal transplants. Yet the tensions between coherence, uniformity and diversity have long been debated within the field of EU legal studies itself. Our proposal builds on this internal debate, but pushes it further: rather than asking how EU law accommodates diversity, we ask what diversity reveals about EU law itself.
Legal comparison in the context of EU legal studies has built upon and propounded a functional vision of law as a means to an end. Functionalism was fruitful in European lawyers’ quest for similarities, because it reduced the comparative enterprise to a search for comparable solutions to similar problems. However, soon the functional vision of law went far beyond comparative studies to become a general characteristic of EU legal thinking –from administrative law to EU constitutionalism and to European private law– and a major one. This is illustrated in principles such as subsidiarity or proportionality, or in theories such as experimentalist governance, which are informed by an instrumental perception of legal measures emerging from a plurality of sources as means to common goals. It is this functional vision of law that has allowed translating different legal rationalities in EU legal terms and has thus sustained the claims of an autonomous and uniformly interpreted EU law. Functionalism is part of EU lawyers’ way of living with diversity.
Functionalism fulfilled an important role in EU law, but it must be gauged against the criticisms that comparative lawyers have formulated on this method. What focus on legal diversity can do now is disrupt the common grammar that is established in EU law – a positive disruption that can unlock different meanings of EU law and enrich our understanding of the way this legal system operates in practice. This is especially the case since the identification of commonly shared aims and values has become increasingly challenging. Taking legal diversity seriously necessitates a shift from a functionalist thinking about law as an instrument to achieve other goals, towards a hermeneutic thinking about law as “a mode of giving particular sense to particular things in particular places”, a kind of knowledge, language and practice that is locally constructed. From this perspective, the variety of local meanings of EU law is not a shortcoming or an imperfection; it is the result of EU law’s insertion in local structures of thought, local webs of significance, local narratives, local ways of “imagining the real”.
This opens new possibilities for the comparative inquiry: from a quest of similarity or equivalence, it turns to an exploration of the “infinitely rich varieties of human experience and their specifically legal expressions”: the local meanings of EU law. Thus understood, comparative law is “an exercise in cultural interpretation and translation, concerned with law’s own structures”. By focusing on peculiar uses of EU legal arguments in concrete social and historical contexts, it sheds light on what is silenced and excluded in dominant interpretations of EU law and mainstream narratives of EU integration. It can thus lead us to better grasp, as lawyers, EU law’s disconnections from the societies in which it is supposed to be embedded. The added value of comparative law lies precisely in the particular attention it pays to legal meaning, knowledge and practice. By providing comparable local meanings of EU legal arguments, socio-legal comparative law focuses on the possibilities of translating local practices, experiences and worldviews in EU legal terms, and thus opens the way for developing a grammar of EU law that is more inclusive.
Comparative EU Law Beyond the State. During the last two decades, comparative studies and volumes have put emphasis on the impact of EU law in the Member States. In particular, those concerned with specific moments of EU integration, such as EU enlargement or the Euro-crisis, have challenged the commonly shared perception of the reception of EU law as a “top-down” process, and of EU legal integration as a linear evolution. This difference-sensitive strand of comparative scholarship has de-centred EU legal studies and pointed to less studied actors and contexts that shape the meaning of EU legal precepts. Combined with other studies, it has shed light on criticism, resistance and conflict, on alternative imaginaries inspiring EU constitutionalism, and on the dynamics of influence and dominance EU law expresses and sustains. This difference-sensitive literature has pointed to the limits of doctrinal and EU-law-in-context approaches, focused on institutional representation and procedure, in addressing knowledge and power asymmetries in the EU.
Still, the focus on national law and politics impedes a nuanced account of the relationship of EU law to social context, beyond the classical opposition national democratic politics vs. European legal integration, which often proves overly simplistic. Legal knowledge and legal consciousness are not delimited by national borders nor is the possibility to produce alternative meanings of EU law monopolised by national legal and institutional actors. Epistemic communities, professional networks, political or cultural associations and social movements are equally important sites of shaping collective mindsets, worldviews and identities, and the kinds of (EU) legal consciousness that result from those, but they are not necessarily confined in a single national legal culture or might be even defined by opposition to such a culture. It is time to get rid of “the national unit” as the central object of comparative law and to connect comparative EU law literature to critical approaches to international law, transnational law and global governance.
EU law offers a unique field of inquiry for developing critical comparisons beyond the nation-state because of its conception as a tool for emancipation from national regulatory constraints and its degree of penetration in national societies. EU legal arguments are mobilised every day by different kinds of actors and produce new professional routines, new material objects, new representations, new kinds of social links and hierarchies. Socio-legal comparison can proceed through immersion in different intellectual communities that negotiate life through EU law. It can draw on other disciplines, such as intellectual history, cultural anthropology, sociological interpretivism, or science and technology studies, and involve different sets of methods and materials, such as discourse analysis, archival research, interviews, observations and legal mobilisation. It can focus on the way EU law is fabricated in practice, and with what effects, on the worlds that it displaces and on the worlds that it propounds, on what it makes possible and what it hinders, on the cultural and material features that hamper EU legal creativity and sustain power and knowledge asymmetries in the EU. Ultimately, socio-legal comparative law invites us to an exercise in legal imagination to reinvent the EU and its law, and this is a timely enterprise for EU lawyers.
Afroditi Marketou, Maîtresse de conférences (Associate Professor) in Public Law, University Paris-Est Créteil
Joana Mendes, Professor in European Public Law, Luxembourg Centre for European Law
This post is derived from Marketou and Mendes, “Taking Legal Diversity Seriously: EU Law as Local Knowledge”, LCEL Research Paper 2025/2.
British Association of Comparative Law 