The principle of equality as a transnational principle

Natalie Videbæk Munkholm, Christian Højer Schjøler

Research output: Chapter in Book/Report/Conference proceedingBook chapterResearchpeer-review

Abstract

The chapter presents the shortcomings of the principle of equality as a source of European Union (EU) law and discusses these shortcomings in light of the origin and development of the principle as a transnational phenomenon.
The equality principle has been developed by the Court of Justice of the EU (CJEU) with reference to the common constitutional traditions of Member States and international law instruments. Elevating a principle found in some Member States to a general binding EU law principle can be viewed as the phenomenon of creating supranational law based on transnational principles. The chapter analyses the national transposition and implementation of a legal principle created through this process. The chapter examines resistance in transposition as a question of the procedural and substantive legitimacy of a supranational rule based on transnational principles. This is then interpreted in light of the theory of critical legal positivism. The theory gives insights into the possible interrelations between the application of a norm and the legal culture of the legal actors, which can act as a learning point for future developments in supranational EU law on the basis of transnational principles.

The use of a principle of equality can be portrayed in a number of contexts. The chapter will use the principle as a freestanding principle challenging national acts. The chapter defines ‘principle’, as an unwritten rule or basic consideration recognized as a common interpretation vehicle. A principle, in this understanding, has a legal content of its own, and can function as a source of law.
Original languageEnglish
Title of host publicationTransnationalisation and Legal Actors : Legitimacy in Question
EditorsBettina Lehrmann Kristiansen, Katarina Mitkidis, Louise Munkholm, Lauren Neumann, Cécile Paladiaux
PublisherRoutledge
Publication dateJun 2019
Pages173-186
Chapter12
ISBN (Print)9781138346970
ISBN (Electronic)9780429437151
DOIs
Publication statusPublished - Jun 2019
EventINTRAlaw workshop Kaløvig 2017 - Kaløvig Center, Denmark
Duration: 22. Jun 201723. Jun 2017

Workshop

WorkshopINTRAlaw workshop Kaløvig 2017
LocationKaløvig Center
CountryDenmark
Period22/06/201723/06/2017
SeriesGlobalization: Law and Policy

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equality
Law
legal positivism
source of law
court of justice
state law
international law
legitimacy
interpretation
learning

Cite this

Munkholm, N. V., & Højer Schjøler, C. (2019). The principle of equality as a transnational principle. In B. Lehrmann Kristiansen, K. Mitkidis, L. Munkholm, L. Neumann, & C. Paladiaux (Eds.), Transnationalisation and Legal Actors: Legitimacy in Question (pp. 173-186). Routledge. Globalization: Law and Policy https://doi.org/10.4324/9780429437151-13
Munkholm, Natalie Videbæk ; Højer Schjøler, Christian. / The principle of equality as a transnational principle. Transnationalisation and Legal Actors: Legitimacy in Question. editor / Bettina Lehrmann Kristiansen ; Katarina Mitkidis ; Louise Munkholm ; Lauren Neumann ; Cécile Paladiaux. Routledge, 2019. pp. 173-186 (Globalization: Law and Policy).
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Munkholm, NV & Højer Schjøler, C 2019, The principle of equality as a transnational principle. in B Lehrmann Kristiansen, K Mitkidis, L Munkholm, L Neumann & C Paladiaux (eds), Transnationalisation and Legal Actors: Legitimacy in Question. Routledge, Globalization: Law and Policy, pp. 173-186, INTRAlaw workshop Kaløvig 2017, Denmark, 22/06/2017. https://doi.org/10.4324/9780429437151-13

The principle of equality as a transnational principle. / Munkholm, Natalie Videbæk; Højer Schjøler, Christian.

Transnationalisation and Legal Actors: Legitimacy in Question. ed. / Bettina Lehrmann Kristiansen; Katarina Mitkidis; Louise Munkholm; Lauren Neumann; Cécile Paladiaux. Routledge, 2019. p. 173-186 (Globalization: Law and Policy).

Research output: Chapter in Book/Report/Conference proceedingBook chapterResearchpeer-review

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AB - The chapter presents the shortcomings of the principle of equality as a source of European Union (EU) law and discusses these shortcomings in light of the origin and development of the principle as a transnational phenomenon.The equality principle has been developed by the Court of Justice of the EU (CJEU) with reference to the common constitutional traditions of Member States and international law instruments. Elevating a principle found in some Member States to a general binding EU law principle can be viewed as the phenomenon of creating supranational law based on transnational principles. The chapter analyses the national transposition and implementation of a legal principle created through this process. The chapter examines resistance in transposition as a question of the procedural and substantive legitimacy of a supranational rule based on transnational principles. This is then interpreted in light of the theory of critical legal positivism. The theory gives insights into the possible interrelations between the application of a norm and the legal culture of the legal actors, which can act as a learning point for future developments in supranational EU law on the basis of transnational principles. The use of a principle of equality can be portrayed in a number of contexts. The chapter will use the principle as a freestanding principle challenging national acts. The chapter defines ‘principle’, as an unwritten rule or basic consideration recognized as a common interpretation vehicle. A principle, in this understanding, has a legal content of its own, and can function as a source of law.

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M3 - Book chapter

SN - 9781138346970

T3 - Globalization: Law and Policy

SP - 173

EP - 186

BT - Transnationalisation and Legal Actors

A2 - Lehrmann Kristiansen, Bettina

A2 - Mitkidis, Katarina

A2 - Munkholm, Louise

A2 - Neumann, Lauren

A2 - Paladiaux, Cécile

PB - Routledge

ER -

Munkholm NV, Højer Schjøler C. The principle of equality as a transnational principle. In Lehrmann Kristiansen B, Mitkidis K, Munkholm L, Neumann L, Paladiaux C, editors, Transnationalisation and Legal Actors: Legitimacy in Question. Routledge. 2019. p. 173-186. (Globalization: Law and Policy). https://doi.org/10.4324/9780429437151-13