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34 Utrecht J. Int'l & Eur. L. 1 (2018)

handle is hein.journals/merko34 and id is 1 raw text is: UTRECHT JOURNAL OF Elaine Mak, 'Transnational Legal Unity Under Pressure: A INTERNATIONAL AND EUROPEAN LAW Contextual Analysis of the European Union' (2018) 34(1) Utrecht Journal of International and European Law pp. 1 3, DOI: https://doi.org/10.5334/ujiel.469 EDITORIAL Transnational Legal Unity Under Pressure: A Contextual Analysis of the European Union Elaine Mak* I. Introduction Legal unity can be characterised as an important feature of complex legal orders, which guarantees rule- of-law values such as equality before the law, legal certainty, and the prevention of the arbitrary exercise of public power. In a formal sense, legal unity can be understood as a notion which contributes to the establishment and continued existence of a peaceful social order. In a substantive sense, legal unity can be understood as a notion which underpins the realisation of specific outcomes for the benefit of societies or their individual members, e.g. outcomes relating to the increase of economic wealth for all, or to the equal treatment of individuals.1 With regard to both understandings of the principle of legal unity, legislators and courts - as institutions on which public power has been conferred - have a duty to strive for consistency and coherence in the development and application of legal rules, while allowing space for legitimate differentiation.2 In a globalised world, the principle of legal unity takes on a new meaning and its realisation encounters new challenges. As the most integrated supranational legal order in the world at present, the European Union (EU) brings out these challenges very clearly As a first challenge, complexity is added by the diversity between national legal doctrines and rules and between traditions of law-making and law development. Legal harmonisation and spontaneous legal convergence can foster legal unity, but both might neither be fully achievable nor desirable in the transnational context.3 Second, different political, economic and moral values may underlie the different jurisdictions. This diversity might entail instances for legitimate differentiation, which ultimately could make the realisation of legal unity illusory4 Equally, renewed societal or political emphasis on national constitutional values - e.g. visible in 'Brexit', or in the rise of democratic illiberalism in Hungary and Poland - can result in an undoing of established transnational legal connec- tions. Third, language and language proficiency influence the ability of law's draftsmen and judges to realise legal unity. The level of language skills, or the absence of a shared understanding of law, might hamper the quality of transnational legal communication.5 Professor of Jurisprudence at Utrecht University, NL and guest editor of this special issue. Contact: e.mak@uu.nl. These definitions connect with the broad scope of scholarly perspectives and societal interests on legal unity which were identi- fied in discussions with our colleagues at the Montaigne Centre. See Eddy Bauw, 'The Unity of Law 1: Blogging about the Unity of Law? The Kick-off' Blog of the Montaigne Centre for Rule of Law andAdministration of justice. (17 November 2015) <http://blog. m ontaignecentre.com/index.php/231 /blogging-about-the-co herence- of law-the- kick- off-eddy- bauw/> accessed 11 May 2018; Rolf Ortlep, 'The Unity of Law 11: A Step towards a Definition and Instruments that Can Optimize the Unity of Law' Blog of the Montaigne Centre (24 February 2016) <http://blog.montaignecentre.com/index.php/275/the-unity-of-law-2-a-step-towards-a- definition-and-instruments-that-can-optimize-the-unity-of-law-rolf-ortlep/#more-275> accessed 11 May 2018. 2 For an overview of different accounts of coherence in the philosophy of law, see Julie Dickson, 'Interpretation and Coherence in Legal Reasoning' In: Edward N. Zalta (ed), Stanford Encyclopedia of Philosophy (Winter 2016 Edition), <https://plato.stanford.edu/ archives/win2016/entries/ legal- reas- interpret/> accessed 11 May 2018. See also Kiewiet in this special issue, section I.B. 3 For further elaboration and illustration, see Mulder; Mak, Graaf and Jackson; Brouwer; and Van Dorp and Phoa in this special issue. 4 In strong support of this thesis, see Pierre Legrand, 'European Legal Systems are not Converging' (1996) 45 International and Comparative Law Quarterly 52, 61-62. In a more moderate sense, see Genevieve Helleringer and Kai Purnhagen, 'On the Terms, Relevance and Impact of a European Legal Culture' In: Genevieve Helleringer and Kai Purnhagen (eds), Towards a European Legal Culture (Beck/Hart Publishing/Nomos 2014) 7, who argue that cultural pluralism itself might be a feature of European legal culture and that diversity is not something that is in opposition to, but rather constitutes a new and different understanding of European legal culture. In this special issue, see Mulder, section IV.; Mak, Graaf and Jackson, section Ill.; Brouwer, section V. Karen McAuliffe, 'Language and Law in the European Union: The Multilingual Jurisprudence of the ECJ' In: Lawrence M. Solan and Peter M. Tiersma (eds), The Oxford Handbook of Law and Language (OUP 2012). See further Van Dorp and Phoa in this special issue.

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