Taking Legal Rules into Consideration: EU Asylum Policy and Regulatory Competition

Abstract

This article applies regulatory competition theory to an unexplored case of competition among legal norms: asylum. The asylum case study allows for a discussion of two main assumptions of regulatory competition theory: the spontaneous emergence of competition among rules and the mechanical response of regulators to market forces. The article explains to what extent the current legal framework impacts on the emergence and development of the competitive process. This framework determines the existence of a market of legal norms, it impacts on the arbiters' mobility and on States' decision to compete. The article then addresses the mechanical vision of competition. It shows that law frames the response given by regulators to market forces. It discusses the hypothesis that competing legal rules evolve in a linear way and converge. Finally, the asylum case shows the limits of competition theory's ability to explain the evolution of law.