A Critical Assessment of How We ‘Speak’ EU Law

The numbing effects of EU legalism

Although EU law touches on several profound and complex ontologies of ways of living and being in the European polity, these meanings are usually not reflected in how lawyers and legal scholars ‘speak’ EU law. The reason for this is that EU law is formulated in a strikingly abstract and univocal way, leaving little room for an in-depth consideration of the different interpretations of the law by reference to the various values and conceptions of the individual and social institutions that it underlies. Paraphrasing the classical study of Judith Shklar, I term this character and consequence of EU law as resulting from ‘EU legalism’. Clearly, the distinct legalistic qualities of EU law might have been useful in the EU’s founding years when its existence depended upon its ability to distance itself from the power relations of domestic orders. Yet today it runs into the danger of provoking a sense of aloofness that restrains its understanding against the practices and believes characterizing everyday life in the EU polity, thereby fueling the unravelling forces of Euroscepticism.

With this symposium piece I would like to encourage a conversation about how ‘we’ as EU lawyers and legal scholars can go beyond the often technical and distant surface language of EU law. Building on theoretical and methodological insights from linguistic and literary studies, I suggest that in order to make visible what is obscured in EU law, we lawyers have to reconsider our understanding of (legal) language. Instead of only understanding legal language as neutral tool that we use to explicate rules or principles (i.e., legalism), I argue that there is some worth in also understanding it as an autonomous world that epitomizes an array of tumultuous and manifold ethical and socio-political meanings.

In the following I will first explain the historical origins that have contributed to our contemporary way of ‘speaking’ EU law. Subsequently, I will elaborate in more detail what it entails exactly for us lawyers to allow for enhanced understandings of (legal) language. On these bases, I will conclude with some reflections on what the acceptance of such novel view would entail for the traditional doctrinal analysis of the law.

EU law’s depoliticization rationale

The creation of the European communities came with a promise for a peaceful and more prosperous future. As the Schuman Declaration pronounced, this was supposed to be achieved through the interweaving of the economic interests of European states in a way that would both enhance European welfare and make warfare ‘unthinkable’ and ‘materially impossible’. The institutional and legal recipe underlaying this promise was the Community method that aimed at replacing power politics with law. This method, which is most clearly and influentially represented in Pierre Pecatore’s law of integration approach, regarded the law of the newly created supranational order as emancipatory tool away from the chaotic socio-political tribulations characterizing national orders. It aimed at disciplining the behavior of domestic polities in an endeavor to ultimately bind them together in a new autonomous organization.

Yet if EU law was going to live up to this integrative function and enable the continued perfection of the European dream, it had to stand above domestic laws and related socio-political struggles. This entailed functioning in line with its own internal logic based on newly established legal concepts, principles, and legal reasoning techniques that were different from those found in domestic orders. Just think of pervasive concepts and principles in contemporary EU legal thinking, such as the autonomy or effectiveness of the European legal order, institutional balance, judicial review, and equal treatment or legal techniques like teleological interpretation. Every EU lawyer can nowadays easily identify them as part of the internal logic of the structured and consistent EU legal system that most people rely on when examining and interpreting EU law with the purpose of realizing the imagined dream of European integration.

Yet the formalistic baseline set by Pescatore comes at a cost that still belies prevalent modes of EU lawyering today. As EU law could only fulfill its new supranational function if it distanced itself from domestic orders, it had to disguise the intricate power dynamics among EU institutions and those of its member states as well as the socio-political challenges of everyday life in the European community. Only if EU law’s concepts, principles, and techniques were applied and expressed in an abstract and general manner, allowing for its normativity to be immanent as opposed to material, could the authority of EU law be upheld and the goal of an ever-closer union of people be achieved. Yet in the meantime, the cultural context has changed in the European community and one might question for good reason whether it is still necessary for the language of the EU law to be as aloof as we find it today.

From propositional to performative understandings of the language of the law

In our contemporary culture, it is not uncommon to talk and think about language as if it was a neutral instrument or tool, merely pointing to something outside of the language itself.¹⁾ From this viewpoint, the language we use in our daily lives does not have an autonomous life of its own, but merely allows us to transmit messages about physical objects, experiences, and ideas in the world that exist outside of the world of the language. As a result, the meaning of the language we engage with is regarded as being nothing more than what it postulates. As language only labels the outside word, it is presumed that there can only be one meaning of the words we use and this meaning is synonymous to what our language explicitly asserts.

We can recognize this way of thinking and talking about language in the EU legal sciences. When analyzing and interpreting the law, it is not unusual to see that legal practitioners and scholars start their investigations from the presumption that the law can be captured by one clearly restatable message. As EU law is regarded as constituting a coherent and consistent system of norms that are plainly established and available, they start from the assumption that the law cannot but have one message and that the meaning of the law is or has to be synonymous to the message about the rule or principle that the language of the law affirms.²⁾

This way of thinking about the law is also reflected in how traditional EU legal sourcebooks are written and structured. They usually systemize primarily and secondary rules into specific themes and then integrate the cases decided by the Court of Justice on the respective rule as manageable excerpts. It is presumed that the cited case excerpts comprise one clear message that clarifies the meaning of the respective rule or principle discussed. This approach to classifying EU law certainly teaches its reader much about the law that is essential for the practice of the law, but it will not teach the reader much about the life of the law, the ethical and socio-political richness of what the law means in the details of its utterances.³⁾ It will allow the reader of the law to quickly understand how a newly established rule or principle or a recently decided judgement makes sense against the broad canon of the EU acquis. Yet it certainly does not allow the reader to access the complex ideas about ways of life and ways of being in the EU polity that the language of EU law holds.

Yet there is another way of thinking about (legal) language, which we know, if at all, from our experience of reading literary texts. In this alternative view, which can seminally be attributed to the ‘second’ Ludwig Wittgenstein, language is not a transparent or neutral tool simply pointing to a message about some experiences, objects, and ideas in the outside world, but a medium that has a life of its own. It is regarded as performative in the sense of being inseparable from its structure and content and the reality in which it is uttered. As a result, the meaning of the language we engage with is not seen as only signifying what it postulates, but as something that goes beyond what it explicitly propounds on its surface level and that to some relevant extent comes to constitute it.

Does anything of the aforementioned also apply to legal language and texts? The insight of literary studies might be able to help in answering this question, as the belief that one clearly restatable meaning can be drawn from literary language and text also persisted for a long time in this field of study. Disciples of the school of ‘New Criticism’, for instance, believed that if literary scholars only pay diligent attention to a literary text’s constituent parts, they would be able to extract one determinable and universally valid meaning from it. Yet this understanding of literary language has changed in the meantime and this changing convention, so I claim, can also be useful for the lawyer’s approach towards the law.

First, most literary approaches nowadays presume that the substance and structure of a literary language and text is simply too complex and ambiguous to be able to be restated, once and for all, in one single sentence and message. Rather, it is claimed that the constituent parts of a literary text act directly upon its language in such a way to give its words a certain meaning and to establish certain patterns that give the text a significance on its own. But there is a second reason why it is nowadays regarded unpersuasive in the literary sciences to speak as if the meaning of literary language and texts can simply be restated in a single term. The reason for this is that there is always a space in a text, an undefined, ambiguous whole, which cannot be made sense of by reference to the language and pattern of the text alone, but only by reference to the perspective of the reader of it. It is hence not only the horizon of the text itself, but also the horizon of the one reading it that determines its meaning.

We can also apply this logic to the reading of legal language and texts. Often, the meaning that we as lawyers or legal scholars attribute to judicial texts derive from the surface language by which the respective rule or principle is explicated. Yet if we would pay more attention to the respective principle and rule and evaluate it against its fine-grained interplay with the structural and linguistic features of a legal text, we would realize that legal language holds more complex and manifold meanings than the justification of the respective rule and principle suggests. For instance, an abstract concept like equal treatment can mean many things when assessed in its structural and semantic context. What does it, for instance, mean that in the case Abdoulaye and Others, in which a ‘father’ asks for parental leave on equal treatment grounds, the judicial text never explicitly mentions the ‘father’ and only the ‘mother’? We can interpret this textual aspect as meaning that EU law embraces a traditional view of equality between mothers and fathers in which everything that has to do with caretaker duties is attributable to the ‘mother’ and not the ‘father’. Yet we can also interpret it as meaning that special awareness is given to the situation of the mother as a way to improve equality between the genders in parenting.⁴⁾ Depending on the image we attribute to a legal rule or principle in relation to the linguistic and structural features of a legal text (such as the existence (or absence) of a textual feature), we will read and assess the socio-political meaning of the case differently.

Yet there is also the role of the reader or interpretative community of legal language and texts that should not be overlooked. There are always aspects of the textual features of the law that do not unequivocally tell the reader what the law means with the result that it is ultimately the reader herself who realizes its communal and personal significance through her own ‘horizons’ and ‘fore-structures’. To return to the Abdoulaye and Others case, for instance, whether we actually notice that a judgement in which a father asks for parental leave never explicitly talks about the ‘father’ and only about the ‘mother’ depends on the prevalent experiences and sensibilities of the interpretative community that we are part of. The socio-political significance attributed to a legal judgement hence always also depends on the conventions shared by the respective interpretative community engaging with it.

We can conclude that, as literary speech, legal language also comprises varied significances indicating that there is more meaning to the law than the message about the rule or principle that the surface language of the law propounds. The next step would now be to reflect upon how we could best disentangle and make sense of this ‘surplus meaning’ of the law and, more critically, whether there are any specific perceptions and interests that are generally shaping that significance within the European public discourse and how to identify and eventually challenge them. For the moment, the goal of this piece was primarily to raise awareness as to the alternative views of language we can take when analyzing EU law.

Thinking beyond (not against) doctrinal formalism

Some might raise the concern that the understanding of legal language suggested in this contribution jeopardizes the coherence and legal certainty required by EU law and any legal system to fulfill its social function of stabilizing cognitive or normative expectations. Yet the suggested reflection about the meaning of legal language is not meant to replace but simply to complement the traditional doctrinal study of the law. It aims to raise awareness about the fact that language can form meaning in more than one way. In fact, it has been suggested by scholars of law and the humanities that it makes little sense to disregard the alternative understanding of language elaborated on above. This is because even if we engage in the traditional doctrinal analysis of the law, the (legal) language we engage with inevitably propounds more than the message about the rule or principles interpreted. Whether the utterer or purported recipient wants it or not, language will always also give expression to forms of ethical and socio-political meaning. As a result, not consciously contemplating the meaning that language transmits does not mean staying neutral about its meaning. It just means accepting it in a less conscious and reflective way when speaking in the name of EU law.