Amidst all the talk - constructive and critical - about the emergence of
a more flexible conception of the European order, a key question threatens to
disappear from sight. Is flexibility aptly viewed as a discrete and technical
legal matter? Or is it a broad descriptor, with only an incidental legal
dimension, for the more fragmented, multi-layered order of governance in Europe
and beyond which is emerging from the complex mix of economic, cultural,
political and technological processes involved in `globalization'?1 Or, thirdly, is flexibility best conceived of in
plural terms, as possessing both a particular legal dimension and a broader
significance? Many writers appear unmoved by this question, their answers, at
best, only implicit in their general approach. The danger is that it is simply
assumed by some that the legal dimension is axiomatic,2 and by others that it is a mere reflection of a
larger process.3 The absence of a more
thorough reflection on conceptual foundations is unfortunate, as it is a basic
premise of this paper that neither the discrete nor the subsumed approach is a
wholly adequate answer to the question of the legal significance of
flexibility. Instead, the third, more subtle, answer is favoured. There is,
indeed, a distinct legal dimension to flexibility which is not merely
epiphenomenal of broader social forces, yet legal flexibility remains
intimately and inexorably related to these broader processes.
In grasping law's quality as a `semi-autonomous social field' 4 in this connection, we can appreciate that law both influences and has been influenced by flexibility and gain some measure of the terms of this reciprocal influence. Only in this way, it is submitted, can we understand the enormity of the challenge posed by flexibility to our conventions of European legal order and the great demands and opportunities involved in rethinking these conventions. This in turn provides a platform for the main part of our discussion, which concerns the development of a language adequate to the task of reconceptualization.
1 Cf, D.Held, A. McGrew, D. Goldblatt and J. Perraton, Global Transformations, (Cambridge, Polity, 1999).
2 There is a burgeoning legal literature on flexibility which, however sophisticated in its own terms, pays scant attention to the social and political processes underpinning flexibility. Cf, C.D. Ehlermann, "Differentiation, Flexibility, Closer Co-operation: The New Provisions of the Amsterdam Treaty", (1998) 4 European Law Journal, pp.246-270; H.Koltenberg, "Closer cooperation in the Treaty of Amsterdam", (1998) 35 Common Market Law Review, pp. 833-854; G.Gaja, "How Flexible is Flexibility under the Amsterdam Treaty?", (1998) 35 Common Market Law Review, pp.855-870.
3 Some of the most suggestive political science work on flexible polities within and beyond the state tends to ignore or marginalize the institutional specificity of law. See, for instance: Michael Keating's work on asymmetrical government; e.g M.Keating "Asymmetrical Government. Multinational States in an integrating Europe", (1999) Publius (forthcoming); David Held's work on cosmopolitan governance; e.g. D.Held, Democracy and the Global Order; from the modern state to cosmopolitan governance, (Cambridge, Polity, 1995); and Gary Mark's work on multi-level governance; e.g. G.Marks, L.Hooghe and K. Blank, "European Integration since the 1980s: State-Centric Versus Multi-Level Governance", (1996) 34 Journal of Common Market Studies, pp.341-378.
4 S.Falk Moore, Law as Process: an anthropological approach (Routledge & Kegan Paul, 1978) ch.2.
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