Legal Empathy in the Internal Market: Free Movement Law as a Comparative Dialogue

Abstract

This paper characterises and analyses free movement law as an exercise in legal empathy. Negative integration in the internal market is based on and facilitated by differences in national laws, which are explored through the free movement provisions. This process results in dialogues between Member States, in which they are required to recognise and respond to the legal position of other Member States. Each of the pillars of the structure of free movement law has a distinct role to play in structuring these dialogues. Legal empathy in the internal market is about exploring and understanding differences in national laws. As such, negative integration becomes an exercise in comparative law. Comparative dialogues in the internal market result in learning effects, which may encourage or require Member States to amend rules. A balance should be maintained between harmonisation and negative integration to ensure that Member States engage in legal empathy. Brexit shows that legal empathy is difficult to achieve without a general commitment to communicate through free movement law. Finally, comparative lawyers should play a more prominent role in free movement cases to improve the quality of comparative dialogues in free movement law.