-
1. Influence and the toolbox concept: Some preliminary considerations pertaining to method
- Leuven University Press
- Chapter
- Additional Information
1. Influence and the toolbox concept: Some preliminary considerations pertaining to method [54.157.61.194] Project MUSE (2024-03-19 08:55 GMT) – 29 – 14. From influence to the toolbox concept. We mentioned that the object of our investigation would be how European Union law influences Belgian constitutional case law on federalism. “Influence”, however, is a difficult concept to grasp here, because it may mean a myriad of things depending on the perspective, because the object and subject of influence do not always allow for a clear definition, and because of issues related to understanding how law in general should be conceived of. The latter reason will lead us to consider the toolbox concept we deploy here in order to enrich our understanding of Belgian constitutional case law relating to federalism. 1.1 Methodological problems pertaining to the object of the inquiry 15. Influence: ambiguities and perspectives. Influence is a concept that resists an easy or straightforward definition. One only needs to read a dictionary to perceive how the concept is fraught with ambiguity. For instance, influence can mean both ‘an emanation of spiritual or moral force’ and ‘the act of power of producing an effect without apparent exertion of force or direct exercise of command’28 . Even disregarding the ambiguity in these meanings, one can ask how influence can actually play in a legal sphere. A first possible perspective is a social theoretical one, which is geared towards law. 16. Influence in social theory. Although some system theorists, like Niklas Luhmann29 or Günther Teubner30 have argued that the “legal system” is operationally closed (“autopoietic”) in the sense that it thrives within its own self-referential language games, Jürgen Habermas has offered some pressing arguments so as to conceive of legal discourse as ‘open’31 . The notion of influence is operationalized here in a legal context, but it does not seem very 28 Merriam Webster Dictionary. Compare eg to the Oxford Dictionary definition (‘the capacity to have an effect on the character, development, or behaviour of someone or something, or the effect itself’). 29 A Sociological Theory of Law 274 (Elizabeth King-Utz and Martin Albrow trans. 1985) (1972) (describing legal science as a discipline which ‘sees law as a constellation of meaning in itself’) and Law as a Social System (Klaus A. Ziegert transl. Fatima Kastner et al. eds. 2004) (1993). 30 Law as an autopoietic system (Ruth Adler transl. 1993) (1989). 31 Between Facts and Norms. Contributions to a Discourse Theory of Democracy 4855 . 207-209 and 330 et seq. (William Rehg transl. 1996) (1992). Influence and the toolbox concept: some preliminary considerations pertaining to method – 30 – helpful in our context. True, the social-theoretical debate can have an indirect effect on our construal of the notion of influence, but the questions authors like Luhmann or Habermas are answering, are primarily whether law is influenced by other non-legal spheres. Our question, here, however, prima facie seems to be narrower, as we are discussing influence by another legal order. Perhaps a more jurisprudential approach can be more fruitful in this regard. 17. Influence in “legal theory”. We could start investigating legal theory or the philosophy of law, so as to learn what influence of one legal order on the other order means. In abstracto, to our knowledge this problem has not been elaborately discussed. But as applied to some more contentious issues, some (applied) legal theory can be read to have dealt with the issue32 . However, this legal theory does not necessarily offer a clear definition of the concept either. In relation to the problem of how to integrate the different (national) legal orders with the European legal order, the debate has recently been shaped by a discourse of constitutional pluralism33 . In this spirit of pluralism (although 32 On the importance of this legal theory for some dogmatic questions, see eg Stef Feyen, The Economic and Monetary Union: caught between Brussels and Luxembourg in Federalism in the European Union 392 (Elke Cloots, Geert De Baere & Stefan Sottiaux eds. 2012). 33 See, eg, the famous introduction by Neil Walker (The Idea of Constitutional Pluralism, 65 Modern Law Review 317 (2002) and Multilevel Constitutionalism: Looking beyond the German debate in The Many Constitutions of Europe 143 (Karlo Tuori & Suvi Sankari 2010)) (accordingly, I do not distinguish a priori between constitutional pluralism and multilevel constitutionalism, as developed by Pernice in Germany); also see Neil MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth 117-18 (1999); Miguel...