This article analyzes the interactions between norms formally stemming from different orders and regimes so as to demonstrate how and to what extent the legal spaces composing the transnational legal sphere are intertwined. Furthermore, it addresses the consequences of the intertwinement and suggests a fresh approach to the traditional concept of legal orders: it stresses a norm-centered rather than system-centered understanding of the transnational legal sphere. It argues for a norm-based strategy in order to understand the phenomenon of intertwinement, analytically deducing the relationship of the legal orders from the relationship of the legal norms.
This article discusses two landmark judgements by the German Federal Constitutional Court (CC) on the relationship between domestic and EU fundamental rights protection (Right to be forgotten I and II). In these judgements, for the first time, the CC uses EU fundamental rights as a standard of review. In addition, the CC establishes a novel framework of “parallel applicability” of EU and domestic fundamental rights for subject matters that are not fully harmonized by EU law. The article first presents the new approach, showing that it structurally changes the parameters of the relationship between the CC and the CJEU. Second, the article assesses the legal-political tendency reflected in this change: is this constructive dialogue or rather pushback against the CJEU? The article argues that this new jurisprudence should be characterized as an instance of resistance. The CC resists against the CJEU in its function as fundamental rights court, attempting to reduce the authority of the CJEU and reversing a development that it considered to be unfavourable to its own authority. This is structural pushback aimed at the CJEU’s function rather than at individual decisions or norms - however, without rejection the CJEU as an institution altogether.
This Article illustrates the functional and conceptual variances of law in different contexts. Whereas legal actors on the international level might normatively aim for law to have a similar effect to that of domestic law, the way in which international and supranational law can fulfill these potential functions is different. Accordingly, this Article argues that an awareness of the particularities and challenges that the potential functions of law encounter in the international and supranational context is needed. Moreover, it suggests an analytical lens to conceptually frame and locate current developments, offering a broader perspective on—or even an element of explication for—the apparent crisis that law is currently facing on the international and supranational scale. After describing the potential functions of law on an abstract scale and grouping them into analytical categories, the Article uses these categories as a lens in order to assess in which way international law can fulfill these potential functions, where priorities regarding certain functions might differ, and where some aspects of these functions are challenged when law is made and applied in the international and supranational sphere.
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