The Janus-Faced Culture of EU Law

Can there be a cultural study of EU law? The notion of legal culture is notoriously tricky. It is both omnipresent and yet seemingly ungraspable. On the one hand, anyone who has engaged with legal practice in more than one jurisdiction will be familiar with the feeling that, beyond any differences or similarities in applicable rules, there is something irreducibly unique to each setting in how the law is understood, practiced and upheld. That something will often be referred to as a legal culture – the culture of French law, the American litigation culture, the legal culture of international organisations, etc. On the other hand, it seems extremely difficult, if not downright impossible, to pinpoint exactly what that actually is. This makes culture seem a lazy subterfuge or, as put more cogently by Sally Engle Merry, a ‘residual explanation left over when other modes of explanation are not quite sufficient’. It thus reveals both ignorance and self-awareness – by signaling the existence of a particular legal culture, we acknowledge that the workings of the law are more complex than we understand.

Can we nevertheless hope to dispel the mystery of legal culture, and seize this notion as an object of study? And can it provide a method to improve our understanding of EU law? One option would be to break legal culture down into separate social phenomena, as typical of sociolegal and anthropological enquiry (see here). Hence, we may examine the particular practices and ideologies of the legal profession in relation to EU law, the attitudes that citizens have in relation to the EU legal system, or the extent to which they see themselves shaped by EU law. There is however another option, most often found in comparative law (see here or here), which maintains legal culture as a unitary or holistic notion. It involves focusing on the deep ideas, frameworks, and patterns of thinking about the law, that are unique to particular jurisdictions or legal fields, and structure how legal texts are produced, interpreted and implemented. It is this second path that I wish to explore here, to consider (very tentatively – see here for our longer analysis) if there is such a thing as a unifying culture of EU law.

To do so, let us travel first to the US. I wish to rely on the work of Paul Kahn, particularly his books entitled The Cultural Study of Law and The Reign of Law, where he investigates an American culture of law. Crucially, the constitutional scholar repurposes the ‘rule of law’ as ‘a way of being in the world’ – what he also labels ‘law’s rule’. Rather than approach it, in a more traditional fashion, as a set of norms, a principle of government, or a type of polity, Kahn sees it as a ‘distinct way of understanding and perceiving meaning in the events of our political and social life’. It is this framework of experience that he identifies as central to the American political imagination.

What is it then that characterizes law’s rule? To answer this question, Kahn tells us, we must proceed by identifying key oppositions. The particularity of the rule of law can only be understood in relation to the other frameworks with which it stands in competition. The main competing framing is what he refers to as ‘political action’, which structures the experience of political events in a radically different way. To appreciate this, Kahn uses three main coordinates:

The first is the relationship to time. The rule of law is backward-facing – it frames events by connecting them to the past. Its commitment is to the maintenance of the legacies of our predecessors, as each generation is tasked with preserving the work of those that came before. Political action, by contrast, is forward-looking. It is free from any loyalty to the past and is powered instead by ‘responsibility toward future generations’. Events are therefore seen in terms of how they help build something new and better from what was received.

The second relates to the subjectivity behind political events: who is it that acts? The rule of law is necessarily ‘impersonal’, it is the rule of no one in particular. Decisions must be vindicated as flowing from the law, not from the individual judge charged with delivering them. Political action calls instead for acts of ‘personal distinction’ – events are individual achievements to which the name of particular actors is attached.

Third and finally, the two frameworks are opposed by the structure of political rule. The rule of law is a system of representation, political events are understood as mediated. Through the law, political rule is exerted on behalf of a sovereign that is not directly present. This means that it can only be legitimate to the extent that it can do so in a credible way. Conversely, political action speaks for no third person. It serves to directly instantiate a particular political project, which has no existence outside of that concrete action.

My sense is that these oppositions can be very productive for a cultural study of EU law, but not in a way that easily matches Kahn’s observations about the American experience. I want to argue that the culture of EU law can be seen as a synthesis of the two models, the rule of law and political action. This is because, while on the one hand legal practice in this field continues to be dominated by a forward-looking commitment to the project of European integration (i.e. Europe’s realization as an ‘organized and living’ political community), that commitment is understood as a legal one, so flowing from the very substance of the European legal order.

Let us begin with the first half of the claim – the prevalence of a commitment to integration. It is of course true that the various crises experienced by the EU over the last decade and a half have provoked a very major reconsideration of the European project. I do not think however, against what Joseph Weiler has argued, that this reconsideration has led to abandoning the commitment to integration. How the promised land of integration is imagined may have changed, but that central commitment maintains its strength. There is little interest in revisiting those areas that have been traditionally integrated (the euro, EU citizenship, the internal market, structural principles such as primacy of EU law, etc.) and, if anything, the various crises have only fueled calls for novel areas of supranationalist development (fiscal integration, rule of law policing, further enlargement, etc.).

So how does this commitment to integration shape how EU law is experienced? It does so in ways that seem very similar to Kahn’s model of political action – the opposite of the rule of law.

First of all, in temporal terms, the teleology of integration entails that we consider the practice of EU law, its reform or interpretation, in terms of how it advances towards that future horizon. There are moments where momentum is lost (as during the various crises), while at other times the process speeds up (as is perhaps again the time now). What is essential, however, is that the development of EU law is framed necessarily as a step in that direction, always a ‘new stage in the process of creating an ever closer union’ (to use the language of the EU Treaty). The framework of integration does not allow any moves in any other direction, and most of all any step back from what has been acquired. In other words, ‘disintegration’ is not simply a risk which EU law works to prevent, the very possibility of framing events in such terms is entirely ruled out.

Second, this forward march of the European project advances through exceptional individual contributions to the development of EU law. These contributions are then remembered and cherished as transformative moments. There is a certain tendency to speak of the EU’s founding fathers (Monnet, Pescatore, Hallstein, Delors, etc.), imitating the American devotion. In the EU context, however, the politics of distinction shapes above all our understanding of the work of particular institutions, which step in at crucial times of crisis or doubt to take on their responsibility to push the project onwards. Thus, the Court’s revealingly named ‘heroic period’ in the 1960s and 70s is celebrated as moving the EC from an intergovernmental institution to a new legal order comprising individual citizens. The Commission’s contribution in the 80s is looked back upon as the driver for the completion of the internal market. The ECB’s intervention during the financial crisis is seen as responsible for saving the monetary union and pushing towards a more tightly bound community.

Third, EU law is experienced, crucially, as instantiating the very project of integration. It is judged less on the basis of its ability to speak for an absent sovereign, but for how its development gradually brings the European political community into being. This is why effectiveness is existential – as put by the Court of Justice, effet utile is of ‘the essence’, a property ‘inherent in the system’. And conversely, this is why the failure of EU law translates into the negation of the EU. Member States do not simply fall foul of EU law, they situate themselves outside of Europe, and the EU shrinks as a result — the internal market evaporates, the European value-laden project retreats. We see a reflection of this in frequent talking points. Thus, Hungary’s and Poland’s ‘rule of law backsliding’ are said to amount to a de facto withdrawal from the EU, Greece’s alternatives to austerity were presented as either Grexit or the disappearance of the monetary union, if not the EU as a whole.

So does this mean that to live under EU law is to live under the logic of political action, which has to endlessly repeat itself to produce meaning? This would reduce law to an empty vessel, as argued by Ulrich Haltern. I wish to suggest however that, in the common sense that largely dominates, EU law is understood as the very substance and concrete incarnation of the project of integration, and not simply a medium for its implementation. Within this framework, effectiveness is of the essence, but so is law – the European project is necessarily embodied in EU law, it has no existence outside of it. Hence the importance of the expression ‘community of law’ to describe the EU (communauté de droit, Rechtsgemeinschaft) – one that contrasts with Kahn referring to the US as a ‘community under law’.

Most recently, this synthesis of political action and law’s rule is at work in the development of the principle of the rule of law as a constitutional principle of EU law. On the one hand, the principle of the rule of law is understood as a call to forward-looking action (as most vividly illustrated through the emergence of a principle of ‘non-regression’), dependent in its very essence on the ability of European institutions to develop effective action (if necessary through novel powers – see here or here), and calling on these institutions to take on the responsibility of developing this agenda and distinguish themselves in doing so (see e.g. here). On the other hand, however, the horizon of integration is defined and limited by law, the forward march towards that horizon is framed as proceeding from a backward-facing commitment to the legal nature of the European community, and the legal commitments contained therein – it is a matter of the EU ‘staying true to itself’, as put by some.

How can such seemingly contradictory logics operate together? The key lies in an understanding of law that allows for its constant self-overcoming – what can be referred to a culture of ‘lawful messianism’. In brief, while EU legal practice shows a commitment to its own gradual development and transformation, that commitment is understood as present within EU law itself, rather than in outside forces. This is particularly evident with regards to its all-important structural principles, such as effet utile or autonomy. These principles serve to drive the constant integrationist actualisation of EU law, but at the same time entail that such progress must not jeopardize the maintenance and stability of the legal order. Thus, the law moderates as much as enables the commitment to integration. It is ultimately this Janus-faced quality that defines and irrigates the culture of EU law, and grants it its unique character.