THE TRANSFER OF LAW WITHIN THE CONCEPT OF LEGAL EUROPEANIZATION.
The concept of Europeanization is very often used, having quite a few meanings such as development of the European financial markets, possible expansion of companies and transnational corporations as well as their increasing domination over the national economies. The legal issues that citizens associate with the Europeanization are related to the insertion of the legal European values in the legal national systems, systems that they do not belong to in a traditional way, and which can be attributed to these main phenomena. Therefore, there it is also question about the Europeanization of the law, of the information and of the culture, about the spread of television and Internet news and other forms of communication and the increased mobility of the commercialization of ideas.
The phenomenon of Europeanization can be defined as a set of structures and economic, social, technological, political, legal and cultural processes, which result from the changing nature of production, consumption and commerce of the goods. There have been continuous and massive changes in the European economy, so it may be considered that the Europeanization is a result of creating a European marketplace.
The Europeanization has also its disadvantages in the sense that it decreases the safety in all indicators, for example: the Europeanization of the local chronic phenomena, the Europeanization of the major organized crime (trafficking of weapons, trafficking of drugs, trafficking of persons), and the radicalization of ethnic and of religious fanaticism, terrorism etc.
The negative aspects are multiple also because the Europeanization is uncontrolled, unled, and not a governed process. Being uncontrolled by the political administration, the economic Europeanization leads, for example, to economic chaos and to ecological devastation in many parts of the world. The Europeanization may influence the democracy in the sense that it is possible to replace dictatorship of national elites with the dictatorship of regional finances. Alarming, are for example, the phenomena of fragmentation and weakening of the social cohesion, on the large areas of the Europe. Practically, by Europeanization, we may witness a deterioration of income distribution, the multiplication of financial and economic crises, with large effects on social and political life, including the danger of the disintegration of certain member states. Marking the borders does not have the same role of an untouchable space of territory, as the state becomes, inevitably, part of a whole, of the Europeanized world, its territory having a purpose guided by logic flows in all areas: the capitals, the goods, the information, the cultures, the persons. All these flows represent both vectors of power, for those who know how to generate them, master them and give them meaning, as well as destabilizing factors, if they are seen as fatalities. Thus in recent years, the increased mobility of law is obvious, because the application of law no more requires adjustment between neighboring states, and also contributes to the organization of movement of capital, of goods, of information, of persons between states and between continents. The concept of Europeanization of law arises from of the necessity requiring the existence of some procedures which to have as purpose the safety of such flows and therefore prevention of potential risks arising from these processes.
2. The Transfer of Law
The science of law, among all disciplines, is the most affected by this process of continue unification of the world because the science of law should be continuously updated, so it may cover as many of the new aspects of contemporary social life as possible. This is necessary because there are permanently new legal areas and new legal domains that appear and new methods and strategies of application and techniques. Consequently, many of those procedures and methods that were fiction in the past, at present may become an acquis.
At European level, the existence of some preoccupations, which relate to the independence of the judicial power but also to the status of those competent to elaborate the law, allow for at least two significant explanations.
First, the reference is to the phenomenon of the Europeanization, which determine, among other things, a certain convergence of judicial systems, creating some areas and common legal instruments at continental level and leading to the intensification of institutional cooperation. This necessarily involves a specific approach of concepts regarding an independent justice and therefore the irrevocability of judges and their role in a democratic state.
Second, it is clear that in all states there is a tendency of the political factor and mainly of the executive organisms to try, in various ways, directly or less directly, to influence the judiciary power. This happens especially through the mechanisms of the nomination and promotion of the magistrates, thus influencing in a negative way the general principles of law and, moreover, prejudicing the state of law. In this context, the political power is structured in three dimensions (Allard and Garapon, 2010: 70): the dimension of national law, the dimension of European law, and the dimension or European practices.
By its specific object, the science of law obtains, now, a very special importance, which is important with regard to the research of state and of law in perspective of Europeanization. It is increasingly evident that the state and the law are no longer depicted in the same values as ten or twenty years ago. In these circumstances, the science of law transcends borders and rules of organization of a particular nation state and can be useful elsewhere and outer norms may be useful in the former state. So the concept of transfer of law may be defined as replacement of all or part of a system of law, which proves to be obsolete, with a system or parts of it coming from a system believed to be somewhat better and healthier system, which is assigned the quality of the donor by the beneficiary of the transfer of law which we would name the receiver, having the final purpose to enrich and augment the obsolete or ill system of law, in order to harmonize the national legal systems with the transnational system of law and inevitably with European system of law.
The transfer of law is, generally, understood as being a transfer of power and institutional structures across geopolitical and cultural borders. This may be imposed or voluntary, includes legal whole systems or single legal principles and aims to be integrate in the similar or different cultures. In receiving states, legal transfers can modify the notion of state of law or non-state social institutions, or in case of certain developing states, they may be implemented in the supreme law of the state, being superimposed on indigenous juridical structures. As such, the supreme national law is more connected to European legal harmonization projects, which are sponsored, by major commercial partners and European donor agencies.
A feature of transfer of law is that it involves a legal system, which incorporates a legal norm, institution or doctrine adopted from another legal system. It can also refer to the reception of a complete legal system, which may appear in a centralized manner. To understand the phenomenon of transfer of law of a foreign legal norm, it is necessary to examine the existing historical premises around the introduction of foreign law in particular cases, for example, if this is the result of conquest, colonial expansion or political influence of the state whose legal norm is adopted. A territorial expansion through military conquest, not always involves the imposition of juridical norms by the conquering peoples, to the conquered populations.
The concept of transfer of law is not new because over millennia, the legal systems from around the world have been developed through legal transfers. Some of the best transfers of law that can be demonstrated with the documents were held during the military expansion of the Roman Empire (Goodman, 1995: 131-36). The roman jurists assimilated jus gentium, which applied to colonized persons with jus naturale (law that should be respected by all humanity) (Barry, 1962: 54-59; Goodman, 1995: 131-39). They considered, as the universal laws of nature are capable of linguistic culture through universal legal codes. Their assumption was that the differences between legal systems have denied the universal attributes of the people and codes of natural laws based on the roman morality were superimposed on the indigenous cultural beliefs and practices.
An adequate example is given by the history, namely, in states under Roman domination, the German and Islamic population, which represented the subjects of legal norms of the state of law, have continued to be governed by their own systems of law within the so-called principle of personality law. In some cases, a direct constraint has been, in fact, how it happened, for example, with the introduction of legal norms of the Spanish law in South America. In other cases, the law of conquering nation has been introduced in part or in an indirect manner. For example, during the British and French colonial expansion there was a trend to introduce elements of legal systems of the colonial powers in the colonies to develop systems of law adapted to the local conditions, but largely reflecting the character of metropolitan systems. In addition, it had to admit that the process of transfer of law could have been interrupted by a revolutionary change considering as a revolution can be defined as a historical event that could change the identity of a socio-political system, by changing the ideological bases of its legitimacy and, consequently, orientation. A legitimate revolutionary change is the radical change which the a socio-political system can be submitted because the transformation of a state's legal system caused by a change, may attract the legal system to move farther from or closer to other systems of law, measure the ideological differences and similarities on social-political and economic structure of various states is expressed in legal norms (Rodiere, 1979: 21-23).
The newborn legal institutions cannot traverse with ease various contexts, which need to be carefully inoculated in the social and legal conscience that will adopt them, somewhat contrary to what mistakenly suggests the idea of transfer of law, namely the fact that the institution which it moved will remain same, will maintain the same function, in the new legal system, wherefrom and the existence of an extremely limited options area, which pushes to the sets out just two possible solutions: rejection or integration.
The principle of the complementarity of legal norms functions as a very effective mechanism in the evaluation of the capacity of legal systems at European level in in order to find the best possible solutions to resolve the legal problems which may occur at the European level (judging the crimes against humanity, human trafficking, drug trafficking, piracy).
Transferring jurisprudence from other states is based on the argumentation that applying unitary legal norms is going to create a unique and common judicial space by creating some unified legal proceedings, an example in this sense being the European arrest warrant (Allard and Garapon, 2010: 27-29).
The systems of law created or updated by the transfer of law method should not be put in the competition, and must lead to a reciprocal permanent maintenance and evaluation, aiming to reduce the risk of rejection of the transferring legal norm. The purpose of this newly created system of law is to guarantee the moral fidelity to the state of law at the same time with the security of citizens who are developing a conscience regarding the existence of a democratic or civilizational common patrimony and are beneficiaries of the new system.
The existence of transfers of law in the various contexts, cultural, socioeconomic and political are important to examine and to determine the opportunity and applicability of such transfer of legislative and judicial practice. It may be true that ethno-cultural differences, political and socio-economic differences between donors and receivers states do not oppose in the particular, the transfer of law with the success of legal norms and institutions. The legal norms can be taken out of context and can be used as a model for juridical development in a very different society. The absence of substantial differences to the wording of a legal norm between a donor and host state does not imply that juridical reality or everyday juridical and social practice in the two states should be identical or similar. Legal reality from the host state may be very different about how humans (including judges and state officials), read, interpret and justify the relevant legislation and court decisions based on them. Moreover, the role of law in the host state may be lesser than it is in the donor state and in the particular can become a predominant factor. Thus, in practice, the social norms could be impeded of people from initiating a legal right or with a decision date of the court in support of such a request. This suggests that it is not of good sense to use the perspective and within their judicial culture when examining a legal norm or the institution borrowed by a judicial system in the context of another culture (Kahn-Freund, 1974: 37). Such an approach will involve the risk of the existence of many more similarities of fact.
Another purpose of transfer of law is to ensure the adequate functioning of the European society requiring the existence of a single legal order, because two separate legal orders, independent may not be valid simultaneously for the same individuals on the same territory, in the same period. Such legal order provides guidance, development and control of actions and the social behaviors based on a hierarchical system of legal norms. Legal rules represent the foundation of legal order and social norms protect the main values and social relations by requiring, allowing or prohibiting some actions or behaviors. Opening a European judicial space by assimilation of some specific legal norms permit speeding up the course of European Justice but also the placement of weaker states under the domination of more powerful states.
The Europeanization of law is at the present in an expanded framework in which the national strategies are on their course to ensure the legal order.
In this sense, the legal order is a synonymous term with the normative order. Ruling the fact that any state represents a law order, such an attribute is, however, relative. Under certain socio-political determination, the legal order can be overturned, replaced, sometimes brutally, with another law order, without the state terminating its existence as a political organization of particular society. That can be appreciated as an involution stage, which would place the State in question, as a result of its order of law change, understanding this order as a public order.
The legal order is nothing more than a normative stratum, which legitimizes the legal order, a formal legitimization, because the legal rules on which it operates as a unitary block, are produced in accordance with a way that procedures are stipulated by the norm supposed to be fundamental. As the new law order or public order may be required and consolidated in the exercise of its substance, is necessary to establish a set of primary norms that will ensure, in terms of validity, the production of same norms of procedure which, in their turn, have ability to impose a fundamental norm based on which the new order of law may establish its substance and.
The Europeanisation of law, as a legal transfer method leads to the birth of a European procedural law that is imposed, on the one hand, by the need to establish and maintain equal social peace at a European level and, on the other hand by a certain attraction between legal cultures as well as an attempt to ameliorate the differences between the legal systems. The main motivation of this latter aspect is that, at the basis of different national systems of law, European principles of justice are common. Being under the influence of various European documents, these principles prevail over the national legal cultures representing a certain return to the origin, a jus commune. This pillar will be the foundation of building a judicial European system accompanied by a legal community. Such a conclusion may be reached with relative ease, observing the increased field of judicial cooperation between Member States in the last half of century: transfer of legal instruments and institutions which had taken place, the European rogatory commissions which were established, the continuous training and the exchange of experience among specialists in law in different Member states, the establishment of common bases of jurisprudence that help analyze and give the best solutions in the common problems that appear, creating, and dealing more recently, with the appearance of new European institutions of law such as the European Arrest Warrant and direct recognition of foreign judgments.
Thus, the transfer of law represents a continuously developing phenomenon, which may lead to an Europeanization of law by extension to any legal norm, which can be useful to particular European legal issues. The Europeanization of law and of justice also opened a new horizon to sovereign states, which are called to evaluate the value and the place in the group of nations in terms of influence and independence. Efficiency, effectiveness and validity of law but also its application in a rational and convincing mode, are principles that prevail over the independence and dignity of every national law. The permanent evaluation of legal systems between them and the transfer of legal norms that they are useful in common and European cases lead to a strong link between the general and the particular cases and law which will be Europeanized in this manner will be apply only to those particular cases.
Allard, J., Garapon, A. (2010), The judges and globalization. New revolution of law, Mona-Maria Pivniceru (ed.), Bucharest: Rosetti education.
Barry, Nicholas (1962), An introduction to Roman Law, Oxford: Clarendon Press.
Constantinesco, J.-L. (1997), Comparative Law Treatise. Introduction to the comparative law, Vol.1, Bucharest: All.
Goodman, Ellen (1995), The Origins of the Western Legal Tradition, Sydney: Federation Press.
Kahn-Freund, Otto (1974), "On Uses and Misuses of Comparative Law," Modern Law Review, 37(1): 1-27.
Legrand, Pierre (2001), Comparative law, Bucharest: Lumina Lex.
Rene, Rodiere (1979), Introduction au droit compare, Paris: Dalloz.
emilian. ciongaru@yahoo .com
Hyperion University, Bucharest;
"Acad. Andrei Radulescu" Legal Research Institute,
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|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jul 1, 2017|
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