Daniel ThürerEuropäische Integration: Herausforderung durch eine sich wandelnde Rechtskultur

2.17 Daniel Thürer, „Europäische Integration: Herausforderung durch eine sich wandelnde Rechtskultur“, Europarecht, 1999, p. 2-7

[European Integration: Challange of a changing legal culture]

a) Background

The text appeared in 1999 in the Jounral for European Law (Zeitschrift für Europarecht). The time of publication was after the introduction of the Euro and the coming into effect of the Amsterdam Treaty which was of particular relevance to Switzerland. The text addresses the potential development of EU-law and EU-institutions and attempts to find a tentative answer to the meaning of European integration also in its general relevance for Switzerland.

Daniel Thürer is an emerite professor (2010) of international law, European law and comparative constitutional law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.

b) Summary

Daniel Thürer argues that European integration is an antithesis (Gegenbild) to the Weberian system of nation states. It was formed defensively out of the vacuum of power following World War II and is based upon endogenous factors of a changing legal culture. European institutions and legal processes of integration were no longer creations of power and force. The expressions of a new and constantly changing self-consciousness of the modern community of law are part of a new modern culture of law. The societal changes increasingly bring the individual to the foreground. These changes in ideas, attitudes, values and conceptions about law bring about a change of legal culture by enhancing the role of the rule of law. “The modern world is a world of freedom and the plan of law; this is inevitable in so intractable a society” (Lawrence Friedmann). Besides and beyond America, western civilization in Europe fosters the fundamental idea that individuals deem unjust and unacceptable discriminations in their exercise of elementary rights, which are beyond their control. Freedom and fundamental rights should be guaranteed irrespective of their nationalities. Institutional structures should be created, which are congruent and commensurate to tasks to be solved. In many cases this strife transcends the legal framework of nation states. This individual–centred view, according to Thürer among others, has its roots in the thinking of Leon Duguit, a prominent predecessor of Jean Monnet’s concept of the “Pouvoir public,” which has as a starting point the individual and not the state. One should get accustomed to view the institutions of the European integration not from the perspective of supranational aspirations for unity in Europe; it should be viewed as a conditioned and predominately natural, historical process.

The processes of European integration bring forward the challenges to form new cross-border legal forms and institutions, which are based on the traditional system of states and the national borders and which do not disrespect or destroy the historically grown communities, political systems and cultural forms of life. These processes are the natural answers. A principle of Victorian attitude should take place. The developments should not instil fear rather they should be open to active participation in the process of their construction and extension. The major issues to be tackled in the further developments of the European order according to Thürer are the supranational control of economic power, the opportunities of the new information technology and the federalisation and the determination of a new order.

c) Text

You can find a scan (PDF) of the original text here:
E_2.17_THURER_Europaeische Integration

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