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E Pluribus Unum: Towards a United Europe in the Field of Public Law?

2010 / Vol. 22, No. 1, (75)
Digital Edition

E pluribus unum:
Towards a United Europe in the Field of Public Law?

Eivind Smith

Professor of public law, University of Oslo (Norway)


The processes towards a “reunification” not only of Germany, but of (parts of) Europe since the fall of the Berlin wall and a great number of other important events some 20 years ago may have created a feeling that we are moving towards greater unity in the field of public law as well. To some extent, this may even be seen as an overarching aim of international regional organisations including the Council of Europe and the European Union. To what extent is a similar proposition credible? The paper addresses the issue by distinguishing i.a. between “Europa­recht” and public law at the National level, between posited legal norms of a more or less technical or “surface” kind and more deep-rooted cultural patterns, between dif­ferent forms of unity or at least uniformity in public law and between different versions of comparative law as means for achieving unity (with a par­ticular eye on Nordic legal systems). The paper’s overarching message is about scepticism - first of all, but not only, as to unity at the level of legal (including con­stitutional) cul­tures. It ends with a normative question: Notwithstanding the credi­bility of the em­pirical supposition, to what extent is “unity” in public law (outside the scope of more or less superficial “Europarecht”) worthwhile striving for on a Continent so strongly characterised by its diversity? Would “Europe” really be Europe if this di­versity diminishes durably in a way that may even be detrimental to our opportuni­ties for dialogue among different traditions and World-views?