Weaving the Threads of a European Legal Order

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Table of Contents: I. Introduction. – II. Actants. – III. The absence of brute facts. – IV. Valency. – V. Law as proliferation of power. – VI. Increasing adjudicative power. – VII. Increasing regulatory power. – VIII. Conclusion: the importance of inclusion and empowerment.

Abstract: Two assumptions dominate and frustrate the debate concerning the emergence and rapid expansion of the European legal order and its relation to national legal systems. The first is that the will and consent of sovereign powers should be seen as a (social) fact that is logically and practically unable to give rise to (legal) norms. The second is that legal orders are distinct systems demarcated by separate sets of criteria of validity. In this Article both assumptions are criticised. Facts are not mere facts. And legal orders are not “autonomous” buildings erected on separate foundations. In order to account for the ways in which the European order overlaps with international and domestic law normative orders a legal order may be more adequately pictured as a web. In such a web, rules are the threads that bind together things, persons and institutions. It is hypothesised that the density of such webs as well as their capacity to connect to other webs determine their weight and relevance as reasons for action and decision-making. This hypothesis is tested in the capacity of European adjudication and regulation to connect to and to include national actors and institutions.

Keywords: validity – valency – actants – count-as rules – networks – democratic criteria.

European Papers, Vol. 8, 2023, No 3, pp. 1301-1315
ISSN 2499-8249 - doi: 10.15166/2499-8249/719

* Professor of Philosophy of Law, University of Groningen, p.c.westerman@rthrug.nl.


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