(2011) 2(2) Transnational Legal Theory 153–165

A New Type of Conflicts Law as Constitutional

Form in the Postnational Constellation

Christian Joerges, Poul Kjaer and Tommi Ralli*

Abstract

The ‘conflicts law approach’ reconstructs the potential of primarily, but not exclusively, European
law to address—‘to compensate’—the threat to democracy that is posed by the concern that citizens
would increasingly be subject to the effects of laws which they themselves had not authored. This
structural democratic deficit calls for consideration of ‘foreign’ demands. It also calls for co-
operation and mutual respect between political constituencies. The normative basis for
understanding conflicts law as a constitutional form with democratically grounded validity claims
stems from the proposition that states must acknowledge or establish a law that provides a forum
for foreign demands and manifests deference through transnational rules. Descriptively, the
approach sets out to examine three types of conflict constellations—horizontal, vertical and
diagonal legal conflicts—and three types of law-mediated responses, layered as the scheme of a
‘three-dimensional conflicts law’. In this special issue, seven articles, including the present, illustrate
the problem constellation to which the evolving conflicts law approach responds and discuss
problems with, or limitations of, the approach.

1. INTRODUCTORY REMARKS

This special issue of Transnational Legal Theory emerges from a multi-disciplinary exercise
combining insights from law, political science and sociology. Common to the
contributions presented is a preoccupation with the role of law in an increasingly
globalised world. Thus, law remains the centre of attention. The wide range of scholarship
included is also reflected in our group of guest editors for this special issue: a jurist, a
socio-legal scholar and a legal theorist, all of whom share a deep-felt interest in the effects

° Christian Joerges is Research Professor in the Law Faculty of the University of Bremen, and Co-Director of
the Centre for European Law and Politics, University of Bremen, Germany; at the Collaborative Research
Center ‘Transformations of the State’ he is directing (with Josef Falke) the project ‘Trade Liberalisation and
Social Regulation in Transnational Structures’. Poul F Kjaer is Alexander von Humboldt Fellow at the Cluster
of Excellence ‘The Formation of Normative Orders’, Goethe University Frankfurt/Main, Germany. Tommi
Ralli is Research Fellow at the Centre for European Law and Politics, University of Bremen, Germany.

153
154 Transnational Legal Theory

of globalisation and Europeanisation on legal scholarship and legal practice—and

especially on the potential of a ‘conflicts law approach’ as a legal answer to the challenges
posed by contemporary developments.

2. THE EMERGENCE OF THE CONFLICTS LAW APPROACH

The conflicts law approach began as a theory aimed at dealing with the effects of nation-
state legal systems beyond national borders, and with the need to organise co-ordinated
responses to the problems arising out of the interdependencies of national societies and
their legal orders in relation to which unilateral solutions are no longer conceivable. As
elaborated by Christian Joerges during the past decade,1 the approach reconstructs the
potential of primarily, but not exclusively, European law to address—‘to compensate’—
the threat to democracy that is posed by the concern that citizens would increasingly be
subject to the effects of laws which they themselves had not authored.2 This structural
democratic deficit calls for consideration of ‘foreign’ demands. It also calls for co-
operation and mutual respect between political constituencies. The law seeking to govern
such compensatory—and, in this way, democratically legitimate—actions is that of
‘conflicts law’. Recently, Jürgen Habermas has defined the democracy problem of the
global ‘postnational constellation’ in precisely the same way as it was framed by Christian
Joerges and Jürgen Neyer at the origins of the approach:

Nation-states … encumber each other with the external effects of decisions that impinge on
third parties who had no say in the decision-making process. Hence, states cannot escape the
need for regulation and coordination in the expanding horizon of a world society that is
increasingly self-programming, even at the cultural level …3

Through the inclusion of a growing number of scholars in its active elaboration, the
conceptual framework and empirical applicability of the approach have been progress-
ively expanded. The interconnectedness of states, supra- and sub-national agencies, and

1 For a systematic presentation of the idea, see Christian Joerges, ‘Rethinking European Law’s Supremacy’,
with Comments by Damian Chalmers, Rainer Nickel, Florian Rödl and Robert Wai, EUI Working Paper Law
2/2005, http://cadmus.eui.eu/bitstream/handle/1814/3332/?sequence=1 (accessed 4 November 2011). The
core normative assumptions regarding the structural democratic deficits of nation states, which European
law is according to the conflicts law approach to compensate for, can be found earlier in Christian Joerges
and Jürgen Neyer, ‘From Intergovernmental Bargaining to Deliberative Political Processes’ (1997) 3 Euro-
pean Law Journal 273–95, 293 (text following fn 85).
2 For a related reconstruction of the problématique of European governance, see Jürgen Habermas, ‘Citizen-
ship and National Identity’, Appendix II in Jürgen Habermas, Between Facts and Norms: Contributions to a
Discourse Theory of Law and Democracy, William Rehg (trans) (Polity Press, 1996 [1992]) 491–516.
3 Jürgen Habermas, ‘Does the Constitutionalization of International Law Still Have a Chance?’, Cirian Cronin
(trans) in Jürgen Habermas, The Divided West (Polity Press, 2007) 113–93, 176.
 A New Type of Conflicts Law as Constitutional Form in the Postnational Constellation 155

private and non-governmental entities has been given expression in the scheme of a
‘three-dimensional conflicts law’.4 At the same time, use has been made of the analytics
of three types of conflict, first developed in the European context. Departing from a
‘multi-level governance’ approach, Renate Mayntz, Germany’s first lady of sociology, has
lucidly summarised these analytics in the following manner:

[The approach] distinguishes between vertical, horizontal, and diagonal legal conflicts in the
EU, i.e. conflicts about which legal norms apply to a given case. … Vertical conflicts are conflicts
between legal regimes at different territorial levels; they occur both between national law and
EU legislation, and between EU law and WTO rules. In horizontal conflicts, [which represent
the traditional private international law setting,] the injunctions of different national laws to
a given case diverge. Horizontal legal conflicts occur typically in the context of transactions
involving the movement of persons, goods, or finances across national borders. Diagonal legal
conflicts finally occur if regimes at two different levels that apply to different aspects of a given
case make contradictory demands.5

In other words, horizontal conflicts occur when different state laws claim application in
the same case; vertical conflicts pit a state law against a supreme (federal or European) law,
while diagonal conflicts refer to a situation where a national regulation belongs to one
field, where the European Union lacks a true legislative competence in that field, but
where nevertheless the regulation may conflict with European law, for example,
competition law or the free movement of goods.6 Thus, the approach essentially seeks to
develop a conceptual framework capable of addressing complex settings in which
jurisdictional authority is not located within a single territorial framework and in which
contradictory governmental or societal interests and their legal re-formulations collide
within a ‘multi-level’ framework.
Differentiating between ‘three dimensions’, the approach responds to two long-term
transformation processes that have affected law at all levels of governance—that is to say,
within nation states, at the European level, and at the international level. One of these
processes is the impact of regulatory politics on legal systems, which has included the
establishment of new institutions, in particular agencies. The other is the ‘turn to
governance’, namely the involvement of non-governmental actors in regulatory politics.
The ‘second dimension’ of conflicts law concerns, accordingly, the penetration of law
4 Sketched out in section 3 below.
5 Renate Mayntz, ‘The Architecture of Multi-Level Governance of Economic Sectors’, MPIfG Discussion
Paper 13/2007, 23–24.
6 Whereas the notions of vertical and horizontal conflicts are widely used, the concept of diagonal conflict
departs from conventional thinking. The concept had already been developed and used in the 1990s by
Christian Joerges and Christoph Schmid; see Christian Joerges, ‘The Impact of European Integration on
Private Law: Reductionist Perceptions, True Conflicts and a New Constitutional Perspective’ (1997) 3
European Law Journal 378–406; Christoph Schmid, ‘Diagonal Competence Conflicts between European
Competition Law and National Law: The Example of Book Price Fixing’ (2000) 8 European Review of Private
Law 155–72.
156 Transnational Legal Theory

with purposive regulative programmes (‘Zweckprogramme’ in the Luhmannian

parlance7), while the ‘third dimension’ deals with the turn to governance, pursuant to
which the law must adjust to forms of self-regulation—and in both the second and the
third dimension expert knowledge and epistemic communities are paramount.
The approach has been refined further and complemented by more distinctly
sociological-based contributions which tend to emphasise the gap between the form that
social conflicts assume, increasingly unfolding along functionally differentiated distinc-
tions between, for example, the economy, science, health and environment, and their legal
reconstruction along mainly territorial lines. From a sociological perspective, such
conflicts can be understood as representing a different type of horizontal conflicts, which
have only rudimentarily gained a concordant legal form. This discrepancy between social
structures and legal forms has triggered a heightened interest in the sort of (quasi-) legal
governance frameworks that have emerged as a reaction to the increased need to stabilise
functionally delineated social processes.
Needless to say, during the work on the conflicts law approach, other more or less
closely related legal analyses and theoretical constructs have been proposed. In Germany,
above all, but also far beyond its borders, there are academic legal and interdisciplinary
debates and projects which, in many respects, are akin to the perspectives of the conflicts
law approach and in relation to which it is orientated and situated. Two examples of such
approaches can be found in the reconfiguration of conflicts law upon the basis of system-
theoretical insights developed by Andreas Fischer-Lescano and Gunther Teubner,8 and
then by Poul F Kjaer,9 and in the perspective on mutual recognition developed by Robert
Howse and Kalypso Nicolaïdis.10 Another strand of research which is important for the
conflicts law approach is emerging from the debates on the constitutionalisation of
transnational law and the subsequent fragmentation controversies.11 Further important

7 Niklas Luhmann, Rechtssoziologie (Rowohlt 1972) 227 ff; Niklas Luhmann, Das Recht der Gesellschaft (Suhr-
kamp, 1993) 195–204.
8 Andreas Fischer-Lescano and Gunther Teubner, ‘Regime-Collisions: The Vain Search for Unity in the Frag-
mentation of Global Law’, Michelle Everson (trans) (2004) 25 Michigan Journal of International Law
998–1046.
9 See Poul F Kjaer, ‘Three-Dimensional Conflict of Laws in Europe’, Zentrum für Europäische Rechtspolitik,
Diskussionspapier 2/2009 (Bremen, 2009); Poul F Kjaer, Between Governing and Governance: On the
Emergence, Function and Form of Europe’s Post-National Constellation (Hart Publishing, 2010) 241 ff.
10 Robert Howse and Kalypso Nicolaïdis, ‘Democracy without Sovereignty: The Global Vocation of Political
Ethics’ in Tomer Broude and Yuval Shany (eds), The Shifting Allocation of Authority in International Law:
Considering Sovereignty, Supremacy and Subsidiarity (Hart Publishing, 2008) 163–91.
11 See, on the one hand, Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Post-
modern Anxieties’ (2002) 15 Leiden Journal of International Law 553–79; Fischer-Lescano and Teubner (n 8)
and, on the other hand, Eyal Benvenisti and George W Downs, ‘National Courts, Domestic Democracy, and
the Evolution of International Law’ (2009) 20 European Journal of International Law 59–72; Jürgen Bast, ‘Das
Demokratiedefizit fragmentierter Internationalisierung’ in Hauke Brunkhorst (ed), Demokratie in der
Weltgesellschaft (Soziale Welt Sonderband 18) (Nomos, 2009) 185–94.
 A New Type of Conflicts Law as Constitutional Form in the Postnational Constellation 157

reference points can be seen in the projects on global administrative law12 and the
interdisciplinary discussions regarding the theory of international relations.13
A characteristic common to all nuances of the approach offered in this special issue
can be clarified through a terminological distinction: under discussion is neither the
choice between legal orders according to the tailored rules of the continental ‘private
international law’, or Anglo-American ‘conflict of laws’, nor the law of international civil
procedure (internationales Zivilprozessrecht). In the European multi-level system,
particularly in the area of social regulation, several levels must work together with none
of them governing autonomously. The same applies at the global level. In both of these
contexts, the term ‘conflicts law’ denotes, first, that European and transnational law will
be concerned with the management of conflicts, and, second, that this management
should take place in a legal framework. The conflicts law approach sets out to investigate
three types of conflict constellations and three types of law-mediated responses. The
three-dimensional structure sketched in the following section is, on this understanding,
a doctrinal construct, Rechtsdogmatik in the German sense, but one that seeks to be in
touch with changing social ‘reality’ (on the sociological underpinnings, see section 4
below).

3. THE IDEA OF A THREE-DIMENSIONAL

CONFLICTS LAW IN A NUTSHELL

Coming to terms with the normative implications of Europeanisation and globalisation

is the controlling focal point of the approach.14 The central normative argument has

12 Benedict Kingsbury, Nico Krisch and Richard B Stewart, ‘The Emergence of Global Administrative Law:
Symposium Issue’ (2005) 68(3–4) Law & Contemporary Problems; Eberherd Schmidt-Aßmann, ‘Die
Herausforderung der Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbezie-
hungen’ (2006) 45 Der Staat 315; Christoph Möllers, Christian Walter and Andreas Voßkuhle (eds),
Internationales Verwaltungsrecht (Mohr Siebeck, 2007).
13 Benjamin Herborth and Peter Niesen (eds), Anarchie der kommunikativen Freiheit. Jürgen Habermas und die
Theorie der internationalen Politik (Suhrkamp, 2007); Regine Kreide and Andreas Niederberger (eds),
Transnationale Verrechtlichung. Nationale Demokratien im Kontext globaler Politik (Campus, 2008);
Brunkhorst (n 11); Nicole Deitelhoff and Jens Steffek (eds), Was bleibt vom Staat? Demokratie, Recht und
Verfassung im globalen Zeitalter (Campus, 2009).
14 For much more detailed recent presentations of the argument see Christian Joerges, ‘Integration through
Conflicts Law: On the Defence of the European Project by means of Alternative Conceptualisation of Legal
Constitutionalisation’ in Rainer Nickel (ed), Conflict of Laws and Laws of Conflict in Europe and Beyond:
Patterns of Supranational and Transnational Juridification (Intersentia, 2010) 377–400; Christian Joerges
and Florian Rödl, ‘Reconceptualizing the Constitution of Europe’s Post-National Constellation—By Dint
of Conflict of Laws’, Harry Bauer (trans) in Ioannis Lianos and Okeophene Odudu (eds), Regulating Trade
and Services in the EU and the WTO:Trust, Distrust and Economic Integration (Cambridge University Press,
forthcoming 2012) 381–99; Christian Joerges, ‘Unity in Diversity as Europe’s Vocation and Conflicts Law
as Europe’s Constitutional Form’ in Rainer Nickel and Andrea Greppi (eds), The Changing Role of Law in
the Age of Supra- and Transnational Governance (Nomos, forthcoming 2012) ch 5.
158 Transnational Legal Theory

already been mentioned:15 it proceeds from the observation that the processes of
Europeanisation and globalisation with their interdependencies have normatively relevant
effects. No state can prevent a rule that it has enacted from having effects beyond its
borders. Often enough, this has the result that the affected jurisdictions and states can
no longer deal with problems autonomously, but must approach them in co-operation.
Luhmann included this phenomenon in his sociology of risk through the distinction
between entitlements to decision-taking and being affected by decision-making.16
Habermas has reconstructed the same problem as a problem of democracy insofar as
globalisation and Europeanisation processes imply that citizens can no longer understand
themselves as the authors of the decisions with which they are expected to comply.17
From this foundation, normative propositions can be derived, which form the basis
for an understanding of conflicts law as a constitutional form with democratically
grounded validity claims.18 Those propositions are as follows: Europeanisation and
globalisation imply a structural democratic deficit, if, and, if so, because, those affected
by decisions have no influence on their formation. Thus, constitutional states must
acknowledge or establish a law which compensates for this deficit in that it provides a
forum for ‘foreign’ demands and manifests deference through transnational rules. This
point of departure opens perspectives on a democratic juridification at both the European
and the transnational level, according to which the much lamented democratic deficit of
European law and transnational law can be rectified. Therefore, constitutional states must
make allowances for these juridical dynamics. The extension of these perspectives is made
along three dimensions of the conflicts law conception. With this differentiation, the
approach reacts to developments within the legal systems at all levels of governance,
namely, the development of ever more regulatory needs and activities and the
participation of non-governmental actors in regulatory policies. The law had to respond
to these developments with institutional innovation at all levels of governance.19

3.1 Conflicts Law of the First Dimension

It is not only the normative basis of the conflicts approach, but by the same token its
potential to reconstruct really existing conflict constellations that is particularly palpable

15 See nn 1 and 2.
16 Niklas Luhmann, Risk: A Sociological Theory, Rhodes Barrett (trans) (Aldine, 2005).
17 See references in nn 2 and 3.
18 For the EU see Joerges and Neyer (n 1); for the international system see Howse and Nicolaïdis (n 10) and
Christian Joerges, ‘Judicialization and Transnational Governance: The Example of WTO Law and the GMO
Dispute’ in Bogdan Iancu (ed), The Law/Politics Distinction in Contemporary Public Law Adjudication (Eleven
International Publishing, 2009) 67–84; Christian Joerges, ‘The Idea of a Three-Dimensional Conflicts Law
as Constitutional Form’ in Christian Joerges and Ernst-Ulrich Petersmann (eds), Constitutionalism, Multi-
level Trade Governance and Social Regulation (Hart Publishing, 2nd edn 2011) 413–56.
19 See Kjaer 2010 (n 9).
 A New Type of Conflicts Law as Constitutional Form in the Postnational Constellation 159

in European law and the European multi-level system. Here, it is especially apparent why
the conflicts law approach cannot be reduced to the choice of a particular legal order. In
horizontal conflict constellations, as the jurisprudence of the ECJ on reciprocal
recognition substantially attests, ‘autonomy securing and contractually communal’
comparison of interests is often possible.20 But with the help of the conflicts law approach,
it is also possible to qualify and structure ‘emerging issues of decision’ (‘anfallende
Entscheidungsaufgaben’) in the WTO, as well as clashes between WTO rules and European
Union law.21 It should be underlined again that the adequate solution of conflicts need
not, and often cannot, be found in the selection of one particular rule. The legislature
and the judiciary might, instead, be better advised to develop substantive answers to
conflicts which retain the function of a conflict rule. Such responses had already been
systematically developed back in 1958 by Ernst Steindorff,22 and have recently been
reinvented by Paul Schiff Berman.23 They are of utmost importance in transnational
regulatory politics—the ‘second dimension’ of conflicts law—but are by no means
restricted to such activities. To name but one prominent example in the first dimension:
the Posted Workers Directive24 mitigates between the interests of firms and workers from
low-wage countries, and the interests of employers and employees in high-wage countries.
It was erroneous to read into this Directive supranational substantive provisions of
general validity—as the ECJ did it in its infamous Laval judgment.25

3.2 Conflicts Law of the Second Dimension

Conflicts law of the second dimension concerns the redemption of national problems
through transnational solutions in the spheres of transnational regulatory politics which
have to cope with divergences of policy orientation, socio-economic differences and
distributional implications of social regulation. Substantive decisions are typically the
only conceivable response. They need to be understood and designed, however, function-
ally as conflicts law, which responds to the interdependence of problem scenarios, the

20 See Fritz W Scharpf, ‘Community and Autonomy: Multilevel Policy-Making in the European Union’ (1994)
1 Journal of European Public Policy 219–42.
21 See references in n 18.
22 Ernst Steindorff, Sachnormen im internationalen Privatrecht (Klostermann, 1958).
23 Paul Schiff Berman, ‘Choice of Law and Jurisdiction of the Internet: Towards a Cosmopolitan Vision of
Conflict of Laws Redefining Governmental Interests in a Global Era’ (2005) 153 University of Pennsylvania
Law Review 1819–92.
24 Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, OJ
1996 L18/1.
25 See Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetare-
förbundet, avd 1, Svenska Elektrikerförbundet [2007] ECR I-11767; and the critique by Christian Joerges and
Florian Rödl, ‘Informal Politics, Formalised Law and the “Social Deficit” of European Integration:
Reflections after the Judgments of the ECJ in Viking and Laval’ (2009) 15(1) European Law Journal 1–19.
160 Transnational Legal Theory

erosion of national regulatory potential, and the concomitant necessity of, and duty of,
co-operation. The best-known example is European Comitology.26 However, the irre-
futable need for transnational, socially regulative policy has, furthermore, encouraged
the co-operation of bureaucracies, the establishment of agencies and the passing of
decision-making tasks (or their preparation) to epistemic communities on a much wider
scale. Here, too, the concern with the preservation of constitutional democratic interpre-
tive motifs remains central and is expressed in a defence of the idea of legally-transmitted
legitimacy and legitimate governance also in relation to the conceptualisation of Europe
as a ‘regulatory state’ with ‘technocratic’ legitimating concepts. In conflicts law, the second
dimension is correspondingly concerned with the elaboration of these decision-making
processes: their organisation, and the recognition and de-limitation of exit options for the
participating jurisdictions. In short, this amounts to a constitutionalisation of trans-
national forms of co-operation.27 Such perspectives are also reflected in the current
analyses of the constitutionalisation of administrative action28 and executive power in
the Union29 and the project on global administrative law.30

3.3 Conflicts Law of the Third Dimension

The third dimension of conflicts law is concerned with the ‘privatisation’ of regulative
tasks and the development of new ‘governance arrangements’, which can be observed at
all levels of governance. A sharp delineation from all the administratively anchored
regulative forms with which the conflicts law of the second dimension is concerned,
appears neither possible nor necessary. At the transnational level, the name of the game
is not to discredit or to block inevitable developments. However, the conflicts law
approach should not relinquish its normative claims and can be deployed against
interpretations involving a self-justifying ruling power, which no longer distinguishes
between the facticity of transnational governing infrastructure and the recognisable worth
of transnational governance. In respect of conflicts law ordering, the conflicts approach
can be interwoven with international civil procedural law and the recognition of
judgments and arbitration. However, it must above all develop techniques and criteria
for dealing with non-statal institutions and para-legal regimes. For such indirect forms

26 See Christian Joerges and Ellen Vos, EU Committees: Social Regulation, Law and Politics (Hart Publishing,
1999).
27 See Christian Joerges and Michelle Everson, ‘Re-Conceptualising Europeanisation as a Public Law of
Collisions: Comitology, Agencies and an Interactive Public Adjudication’ in Herwig CH Hofmann and
Alexander H Türk (eds), EU Administrative Governance (Edward Elgar, 2006) 512–40.
28 See eg Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (Hart Publishing, 2007).
29 See Deirdre Curtin, Executive Power of the European Union: Law, Practices and the Living Constitution (Oxford
University Press, 2009).
30 Kingsbury, Krisch and Stewart (n 12).
 A New Type of Conflicts Law as Constitutional Form in the Postnational Constellation 161

of control, there are templates in European law.31 In the transnational arena, reference can
principally be made to the example of transnational norm-formation.32

4. SOCIOLOGICAL BACKGROUND

Insofar as the three-dimensional approach described above reflects an aspiration to

account formally for the rationality of a differentiation of modalities of conflicts law at
the same time as the objective of a systematic framework is maintained, the move towards
a three-dimensional conflicts law parallels developments such as the turn to governance.
Within a multitude of areas ranging from banking regulation to food safety and health
issues, new forms of epistemic authority have emerged at the national as well as the
transnational level. Operating within the framework of committees and working groups,
experts are deeply involved in the production of the knowledge upon which political
decisions are based, just as in many cases they assume the role of decision-makers
themselves. Thus, national parliaments are not the only source of authority upon which
legal norm-creation relies. This development is further enhanced by the role of private
actors in the production of regulation as well as by the self-regulatory efforts that can be
detected within many economic sectors. Intensive public-private exchanges and private
self-regulation are, of course, not new phenomena,33 but the contexts and frameworks in
which such efforts unfold have substantially changed over the past decades.
More specifically, the three-dimensional conflicts law is concerned with the
penetration of law by purposive regulative programmes (‘Zweckprogramme’)34 and the
adjustment of law to forms of self-regulation, namely, the inclusion of non-governmental
actors in regulatory policy, and to the increased need for expert knowledge. In Europe,
these transformations have been validated on a large scale. Giandomenico Majone
responded to them with his well-regarded conceptualisation of Europe as a ‘regulatory
state’.35 The turn to governance was considerably and visibly extended by the European

31 See Christian Joerges, Harm Schepel and Ellen Vos, ‘The Law’s Problems with the Involvement of Non-
Governmental Actors in Europe’s Legislative Processes: The Case of Standardisation under the “New
Approach”’, EUI Working Paper in Law 9/1999, http://cadmus.eui.eu/bitstream/handle/1814/154/law99_
9.pdf?sequence=1 (accessed 7 November 2011); see also the references in Ralf Michaels, ‘Global Legal
Pluralism’ (2009) 5 Annual Review of Law and Social Sciences 243–62, 253–4.
32 Harm Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating
Markets (Hart Publishing, 2005).
33 Charles Donahue, ‘Private Law Without the State and During its Formation’ (2008) 56 American Journal of
Comparative Law 541–56; Duncan Kennedy, ‘The Stages of the Decline of the Public/Private Distinction’
(1982) 130 University of Pennsylvania Law Review 1349–57.
34 See references in n 7.
35 Giandomenico Majone, ‘The Rise of the Regulatory State in Europe’ in Wolfgang C Müller and Vincent
Wright (eds), The State in Western Europe: Retreat or Redefinition? (Frank Cass, 1994) 77–101.
162 Transnational Legal Theory

Commission in its White Paper of 2001.36 As regards international law, Joseph Weiler has
described ‘international law as regulation’ as a new ‘geological’ formation, postdating
‘transactional’ and ‘communitary’ modes of international law and relying on a specific
form of normativity and legitimacy.37 The global administrative law project can be seen
as an international public law reaction to these developments.38 The differentiation of
three dimensions seeks to take account of these transformations on the basis of the
argument outlined in section 3 that it is possible to distinguish between three ‘geological
layers’ of law, and that not only national law but also European and transnational law
form layers with specific normative functions.
In order to comprehend satisfactorily the structural transformations that form the
backdrop to the endeavour, conceptual links between the conflicts law approach and a
varied number of sociological approaches have been established. One connection is the
recourse to ‘hands-on’ knowledge through a mapping of sites where norm-producing
processes unfold, the operation of these processes, and their effects within a wide variety
of areas ranging from telecommunications, food safety and chemicals to services and
labour standards. A second connection is the reference to and application of middle range
theories which are concerned with, for example, the role of professions and networks, as
well as the specific power and knowledge generated within contemporary governance
arrangements. Last but not least, the changing time and space dimensions within which
norm production unfolds have been addressed, so as to investigate the sort of self-
understanding that emerges within epistemic communities. These efforts have, in
addition, been garnished with reflections on the interplay between territorial, functional
and stratificatory forms of differentiation around which contemporary public and private
forms of regulation are organised.39

5. CRITIQUE, CONTROVERSIES, ILLUSTRATIONS, QUERIES

The issue is organised around six articles, aside from the present, addressing different
dimensions of the problem constellation outlined above. The special issue is bookended
by discussions of problems with or limitations of the evolving conflicts law approach by
Agustin José Menéndez and Michelle Everson. Immediately following the present
introduction, Menéndez offers an account of Joerges’ conflicts law theory and then sets

36 On the legal problématique see Joerges and Everson (n 27).

37 Joseph HH Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’ (2004) 64
Heidelberg Journal of International Law (ZaöRV) 547–52.
38 Kingsbury, Krisch and Stewart (n 12).
39 For an overview of these different positions see the contributions in Christian Joerges and Josef Falke (eds),
Karl Polanyi, Globalisation and the Potential of Law in Transnational Markets (Hart Publishing, 2011), and
for an elaboration of the conflicts law approach see the references in n 14.
 A New Type of Conflicts Law as Constitutional Form in the Postnational Constellation 163

out four critiques to the effect that conflicts law is a less than complete theory of European
constitutional law. First, the theory downplays the ‘genuinely federal dimension’ of
European integration, within which Menéndez counts, among others, the Common
Agricultural Policy, European Parliament elections, and economic freedoms understood
as a transnational standard of constitutionality. Second, the legitimacy basis of European
law is restricted to ‘remedial and balsamic’ properties, which overlooks any direct
democratic legitimacy, however partial or dubious, of the Union. Third, while the primacy
of European law is correctly seen as a conflicts rule, the theory fails to emphasise that a
‘common and federal’ constitutional law develops through the solving of horizontal
conflicts between national constitutional laws. In fact, the counterbalancing stress on
diagonal conflicts may end up endorsing a systemic fragmentation of law. Fourth, the
stability and growth of European law are only accounted for in a ‘de-centralised’ way,
even though the current legitimacy crisis is precisely the result of supranational responses
and the decoupling of European from national constitutional law.40
Between the pieces by Menéndez and Everson are two article pairings. In the first
pairing, Florian Rödl starts out with the argument that a normatively adequate global
law would have to rely on democratic foundations or a ‘democratically sensitive
universalism’. Thus, Rödl favours conflicts law ‘instead of a World State’, which was a
democratic alternative imagined in discussions immediately following the Cold War.
Today’s conflicts law, Rödl says, should democratically govern ‘societal border-crossings’.
The current field of private international law is, for two reasons, unable to achieve this
end. First, ever since the nationalisation of private international law in the nineteenth
century, the field has constituted part of state law, rather than being a ‘meta-law’ which
provides universally valid rules on questions such as jurisdiction and the applicable legal
system. Second, although numerous states became democratic during the twentieth
century, recent developments in private international law have, at the same time,
increasingly freed private actors from the constraints of national, democratic states (by
facilitating choice-of-court agreements, extending recognition of foreign judgments,
extending private autonomy in the choice of the applicable law, attempting to allow choice
of non-state law, and narrowing down public-policy exceptions). As opposed to these
features, Rödl argues, the potential of an expanded theory of conflict of laws in the
transnational context lies in making competing validity claims of democratic self-
legislators mutually compatible. ‘[I]n the event of a conflict of democratic validity claims,’
he writes, transnational conflicts law ‘lends at least one of them validity. Thus, the claim
of democratic self-legislation is … maintained as far as possible in the conflictual case.’41

40 The contribution of Menéndez is part of a critical exchange between him and Joerges which developed in
the context of the project ‘Reconstituting Democracy in Europe’ (www.reconproject.eu). Menéndez has
recently elaborated his position in The Constitution Gift: A Constitutional Theory for a Democratic European
Union (co-authored with John E Fossum) (Rowman & Littlefield, 2011).
41 Florian Rödl, this volume, ???.
164 Transnational Legal Theory

Rödl’s position serves as a basis for the contribution of Marc Amstutz. He also sees
the aspiration of conflicts law to be a ‘cumulative’ democratisation of global law. But
there are questions concerning the assumption—or a limitation on the object of study—
that a democratically legitimate national law would be applied: What if the legal order to
be applied were not democratically established? What about applying a foreign
democratic law in an undemocratic state? Amstutz also provides a specific understanding
of globalisation. In place of interdependence between individuals located on different
sides of borders, Amstutz says, globalisation represents a new structure which tends to lack
clear-cut territorial reference points. Global patterns, such as the world economy or world
literature, rely on the socio-cultural patterns of the nation states for their reproduction,
but at the same time produce new formations which marginalise nation state structures.
The global structures overlay the national ones without mutual exclusiveness, even though
newer global structures may, over time, reduce older territorial ones. According to
Amstutz, the functionally differentiated structures of globalisation will—gradually—
acquire a new concept of law, based primarily upon cognitive, rather than normative,
grounds. This global law cannot be obtained by conflicts law, he says, because conflicts law
is only capable of mobilising classic national legal orders, which are tailored to normative
expectations. Instead, the legitimacy of global law should be sought, not in the classic
democratic model, but in the global patterns themselves through the development of a
customary global (not customary international) law.
In the second pairing of articles, Poul F Kjaer and Martin Herberg connect the
conflicts approach to more general problems of globalisation and transnationality,
problems approached from political and sociological frames of reference. Kjaer’s point of
departure is that, in this sphere, nation states have not per se been weakened. Nation states
have always been embedded in dense transnational forms of ordering, as was also testified
by the phenomenon of colonialism. What is new is that transnational structures in the
wake of decolonisation have gained a new form. As such, the current state and normative
value of the transnational arrangements should not be measured through a comparison
with national set-ups, but through a comparison with earlier forms of transnational
ordering. It follows that transnational structures are to be understood not as substitutes
for national ones, but as autonomous structures for which context-adequate concepts of
transnational law and politics have to be developed. Whereas the conflicts law approach
responds to the legal challenge, Kjaer supports the elaboration of a specific transnational
concept of the political in order to complement, but not to exclude, democratic concepts
of the political as developed in national contexts.
Herberg, in contrast, looks at the potential of law to deal with the ‘self-referring
circularity’ of governance regimes operating in, for example, the field of environmental
management in multinational companies. Herberg argues that law has its own knowledge,
which can co-ordinate and critically scrutinise—in brief, bridge—the claims of different
expert authorities. In order to achieve this aim in the transnational setting, law should not
 A New Type of Conflicts Law as Constitutional Form in the Postnational Constellation 165

become entangled in the cognitive procedures of the other expert authorities. It should
keep on drawing from the characteristics of individual cases, and resolve conflicts
impartially. In governing the supervision of private-sector regimes, conflicts law, Herberg
says, should investigate the ‘regimes of truth’ accompanying the emerging normative
orders.
In an epilogue that serves as the other bookend to Menéndez’s article, Michelle
Everson probes the boundaries of the conflicts law approach. Everson summarises the
virtues and limits of the approach at a time when a global financial crisis is promoting
both supranational co-operation and renewed nationalistic feeling, while other forces,
notably within sustainable development, appear to question all forms of constructed
collective order. The conflicts approach is, Everson points out, conservative, and correctly
so, in procedurally allocating the right of normative decision amongst established political
communities. This is a virtue of the approach. But the approach should also open up—
and, by implication, be more open to—a new dimension for emergent political
communities, in order to continue recognising the reality of law’s social environment.
To quote Everson, ‘we must be aware of the limits of the conflicts approach, particularly
with regard to the ability of law to integrate and mediate the social justice demands of an
infinitely complex social reality’.42

42 Michelle Everson, this volume, ???.