Power to the legal professionals: Is there an Americanization of European law?

• 成果类型: Article
• 署名作者: van Waarden, Frans
• 署名单位: Utrecht University
• 刊物名称: REGULATION & GOVERNANCE
• ISSN/ISSBN: 1748-5983
• DOI: 10.1111/j.1748-5991.2009.01056.x
• 发表日期: 2009
• 页码: 197-216
• 关键词: adversarial-legalism; GLOBALIZATION; juridification; corporatism

摘要

Twelve years ago, Robert Kagan asked Should Europe worry about adversarial legalism? He answered this question with a qualified no, and identified a number of sources of resistance to such a trend. More recently, he broadened the issue in this journal by asking whether European countries experience an Americanization of their legal systems. The articles in this Symposium on the Americanization of European Law all revisit that question. The present article introduces the topic, discusses the elements that make up adversarial legalism, and summarizes and compares the findings of the articles in the Symposium. The articles find an increase in one dimension of adversarial legalism, namely, more legalism, that is, more litigation, more formalism, and more verdicts interfering with politics, but hardly any increase in adversarialism. Tenacious pre-existing national legal and political cultures and institutions resist a further move in the direction of American style adversarial legalism. The mix of more litigation, more legalism, and more politicization, overlaid on the pre-existing hierarchic authority of courts and legal functionaries has, however, strengthened the societal and political power of the judiciary vis--vis other powers. A professional elite is increasingly making the political choices that in a democratic society ought to be made by democratic representatives. Perhaps Europe should worry about this.