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Publication - Dr Jule Mulder

    New Challenges for European Comparative Law

    The Judicial Reception of EU Non-Discrimination Law and a turn to a Multi-layered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization

    Citation

    Mulder, J, 2017, ‘New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multi-layered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization ’. German Law Journal, vol 18., pp. 721-770

    Abstract

    This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States, particularly, in politically contentious areas such as EU non-discrimination law. In the first part, the article evaluates existing comparative law methods and their suitability to identify legal and cultural factors that influence the judicial reception of EU harmonized law on a national level. Using EU non-discrimination law as a case study, it questions to what extent traditional methods are suitable to explain differences in the national judicial reception of EU harmonized law, despite the exclusive competence of the Court of Justice of the European Union to interpret EU law. In doing so, it considers the potential of critical comparative law for the development of a deeper understanding of the national courts’ reception of EU harmonized law as a key part of the broader legal harmonization process. In the second part, the article develops an original multi-layered culturally informed method to compare EU harmonized law. The proposal goes beyond the existing methods of comparative law by including critical aspects and stressing the relevance of embedding a general normative framework in any comparative critique. It challenges comparatists to reach deeply into national cultural spheres and to identify key influences on the application of EU rules and EU-national legal ‘hybrids’. The method creates room for multi-layered narratives of comparison aimed at gaining a deeper understanding of the national legal and non-legal cultural background that can hinder or facilitate harmonization processes. This enriched comparative critique can offer new insights into the process of legal harmonization in the EU, particularly by focusing on the point of application rather than the previous phases of creation of EU law and its reception by Member States.

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