Sir Francis Jacobs
This chapter discusses three primary roles of comparative law in EU law. First, comparative law is used in the making and application of European law: for example, in the crafting and interpretation of European legislation and in the case law of the European Court of Justice. Second, European law has exerted a significant influence on other legal systems. A third role of comparative law relates to questions about the very nature of European law: how it is to be classified, or whether it is a novel form of ‘transnational law’. Civil and common law systems are also considered in relation to comparative law, along with the ‘components’ or ‘sources’ of European law: treaty provisions and constitutional principles, EU legislation, general principles of law, international law, and case law of the Court. The chapter concludes with an overview of the distinction between private law and public law, a comparison of EU and federal systems, and a survey of other transnational systems inspired by the European Union model.
This chapter deals with European criminal law and its relation to domestic law, international law, transnational law, and criminal justice. It begins with an introduction to general institutional developments in the structures of the European Union that resulted in the emergence of a fragmentary transnational criminal law. In particular, it traces the development of European criminal law to deal with crime control involving terrorism and other crimes of an international character, from the Amsterdam Treaty (1997/1999) to the Framework Decision. It also discusses cooperation in the field of criminal law among the Member States of the European Union. Attention then turns to the general traits of international criminal law. In the EU setting, the adoption of the mutual recognition principle as the cornerstone of criminal law cooperation is given consideration.
This article shows how widespread and how volatile the language of constitutionalism has become in today's EU. It poses the baseline question of the very possibility of a constitutional law for the EU — a question that all positions in favour of a constitution, written or unwritten, are bound to answer affirmatively. The article begins by considering the EU against a general background of constitutional imagination and definition. In so doing, it explains why our understanding of the EU is influenced by the historic centrality of the modern state to constitutional theory and practice, but also why, in these inescapable but incomplete terms, the EU is an unresolved constitutional entity. It then considers how the EU's putatively constitutional features have emerged and unfolded, in so doing focusing on the centrality of law. And as this centrality has come under pressure in the mature EU, the article looks at the changing constitutional challenges and opportunities of this new post-state polity.