July 27, 2012
dkukovec at sjd.law.harvard.edu
A Critique of the Rhetoric of Common Interest in the European Union Legal Discourse
In my dissertation I argue that the current Euro crisis simply brought to the fore a larger and hitherto invisible structural problem as to the relationship between the European Union's center and its periphery. I am arguing that the interests and concerns of the peripheral EU countries are difficult to express in the existing legal discourse and that this crucially influences their position in the EU.
The existing legal thinking in EU legal scholarship as well as in Contemporary legal thought in general reproduces the existing hierarchies in the European Union. The consciousness of the EU legal profession is one of the center of the EU and this crucially determines how harm is conceptualized in EU law. The position of the EU's periphery is not reflected in the existing EU legal discourse and many of the periphery's aspirations and claims for protection against harm are foreclosed from operating powerfully in the Union. There is no doctrine of the periphery and I challenge existing thinking in antitrust law, state aid law and free movement law. For example, I argue that the prohibition of social dumping and lack of prohibition of goods dumping in EU law harms periphery's industry. Furthermore, I am challenging the dichotomy of social and autonomy/free movement claims in Contemporary legal thought and I argue that this kind of thinking and critiques based on such thinking are both theoretically unwarranted and often work to the detriment of the periphery. I argue that this dichotomy follows a conceptual understanding of the world and I describe what I believe to be "The Conceptualism of Contemporary Legal Thought", which pervades legal thinking in all domains of law - economic law, property law, contracts, international law etc., across the world today. I argue that a legal system is better understood as a set of freedoms and prohibitions rather than a dichotomy between social and economic considerations. From this angle, the picture of the legal system is quite different. In the EU legal context, the EU's center has more freedoms and less prohibitions and the periphery has more prohibitions and less freedoms. I argue that these entitlements should be rearranged if all the rhetoric of inclusion of the other and tolerance is to have any real substance. I further argue that the focus of the legal profession on adequate representation and participation is analytically insufficient. I am also critiquing the constitutionalist/pluralist discourse for inadequate conceptualization of power and for the general assumption of common interest in the Union. I am arguing that even the overtly political discourse is analytically insufficient and I thus propose a new grid of legal thought - on the center-periphery axis.
Fields of Research and Supervisors
- International law with Professor David Kennedy, Harvard Law School, Overall Faculty Supervisor
- Legal and Social Theory with Professor Duncan Kennedy, Harvard Law School
- European Union Law with Professor Daniela Caruso, Boston University Law School and with Professor Gráinne de Búrca, New York University Law School
Additional Research Interests
- Antitrust law
- Constitutional law
- Government procurement
- Labor law
- Law and Development
- WTO law
- Harvard Law School, S.J.D. Candidate 2008 - Present
- Harvard Law School, LL.M. 2002
- University of Ljubljana Law School LL.B. 2001
- “Whose Social Europe?”, talk delivered at Harvard Law School on April 16. 2010, available at Whose Social Europe? The Laval/Viking Judements and the Prosperity Gap | Harvard Law School | Institute for Global Law and Policy
- “A Critique of the Rhetoric of Common Interest in the EU Legal Discourse”, talk delivered at Harvard Law School on April 13. 2012, available at Critique of Rhetoric in the European Union Legal Discourse | Harvard Law School | Institute for Global Law and Policy
- Damjan Kukovec, Taking Change Seriously - The Discourse of Justice and the Reproduction of the Status Quo. A talk given at London School of Economics on September 22. 2012.
Languages: English, German, French, Slovenian (native)
Last Updated: November 1, 2012