Europeanisation, National Identities and Migration ... - europeanization

62 Richard Münch
individual negotiation of contracts. In-between, the coordination of action through
the settlement of conflicts by the courts is gaining in significance. National legal
cultures do not fade just because they are covered by European law, but, above
all, because their substantive law based on a strong collective solidarity is not
suited to a situatively variable coordination of action between self-responsible
individuals. Therefore, it is not the legal subjects who are the bearers of national legal
traditions. They are detached more and more from the national legal community
and open toward the more varied, situatively variable coordination of action
through European law. It is rather the jurists trained in national law who appear
to be the keepers of the Holy Grail. This last bastion of national legal cultures is
disappearing along with the appearance of a growing number of young jurists
trained in European law.
National legal cultures are destroyed from two sides: from the top by European
law and from the bottom by the individualisation of the ways of life. Nevertheless,
national legal traditions will not disappear overnight. Since the framework measures
of European law leave some scope for specific national interpretations, and since
the implementation is in the hands of the national administrations, European law
will be adjusted to national patterns of thought and ways of argumentation, and it
will frequently be implemented very slowly, with a great delay and a good deal
of dilution. On the one hand, the ever growing number of procedures instigated by
the Commission against the member states for violating the contracts, i.e. for failing
to adopt European law, shows the growing European legal formation but, on the
other hand, it is also proof of the continued resistance displayed by the bearers
of national law. Nevertheless, the position of national law has changed. It has lost
its position of sovereign validity and has been pushed into a mediator role between
European law and the individualised conditions of life. Its character is being changed
by both these aspects. It is a traditionally anchored interpretation forum for abstract
law and procedural justice as fairness under the terms of individualised conditions
of life. And it forms a link with the national past on the way toward a more open
European future.
Industrial and social legislation is not spared by this process of change, although
it is still oriented to the different national traditions in 95 per cent of cases. The
pressure to abstraction, formalisation and proceduralisation, which is exercised by
European law, and the pressure to individualisation, which results from the changing
conditions of life, involve a long-term refurbishment of national industrial and social
laws, too (Kowalsky 1999: 352–68). These will move away from the production
of collective solidarity toward the support of individual provision on the basis of
elementary security. Industrial relationships will also continue to change: they
will move away from collective contracts toward individual contracts, away from
comprehensive wage contracts toward variable company-related agreements,
away from the total safeguarding of the ‘normal job situation’ toward the support
for part-time and temporary jobs, away from the avoidance of precarious jobs
toward their support by way of negative income tax, away from the administration
of unemployment through authorities toward the activation of those able to work
through private agencies and employment organisations (Keller and Seifert 1995).