EU Law and Legal Theory

“EU law and legal theory” is a big issue to deal with. I will take it from a different, let’s say, from a more methodological perspective. I will try – although without going too deep, on the contrary most remaining on the surface – to understand and to quickly discuss how we should approach the study of European law; how we could approach in a sensible way the study of European law. Now, European law is a very strange creature. It is something that has been created, produced, mostly by jurisprudence and doctrine, and this makes European law especially challenging and interesting for scholars, because it has been, in many respects, a product of scholars.

In a sense, you know, what has happened with European law is like what happened in Germany in the second half of 19th century when there wasn’t any codified law, especially private law, and there was a huge discussion of what the unified German law should be. And in this discussion, the protagonists, the main actors were scholars: Savigny on the one side and Thibaut on the other, later Begriffsjurisprudenz and Interessenjurisprudenz. This discussion then led to the production, to the issuing of the BGB, the German Civil code. So, in the European law we are facing, and we have faced especially in the past – I would say in the last 60s, 70s, 80s and 90s – a similar situation. European community law at the beginning was an unidentified flying object. So, there was, I think, a first methodological decision to take, which was not only methodological, actually, but also political and this makes the things more complicated. Behind European law there was – to use the term of lawyer who I deeply dislike, Carl Schmitt – an existential decision to take: What kind of creature is this? Are we facing international law or are we facing, let’s say, constitutional law?

If you take the textbooks about EC law from the 60s – there were not so many actually – there was recorded this discussion. The dealing with European law, the way it was presented and conceptualized depended actually on the angle, and I would say even on the discipline, of the author of the book.

One perspective – that is the traditional one – was that the Common Market law was international law, so that it was to be seen as a special regional kind of international law. The EC was a regional international organization. Of course, from this pre-comprehension of European law many implications were drawn, in particular its limited impingement on national legal systems.

Alternatively, there was another way to conceive European law – which was actually sustained at the beginning only by a minority of scholars – according to which it was a kind of constitutional law. So, this was a basic decision to take and I think it has been now more or less solved, although in many member states till very recently, European lawyers were usually international lawyers. In Italy, for instance, we have a bureaucratic distinction between academic disciplines concerning academic positions to be allotted and European law teaching till very recently was ascribed as a part of international law. Eventually it has been recognized and acknowledged as an independent area of legal scholarship, but it’s quite recent.

Now, this is, I would say, a first decision and it’s not a neutral decision. In this respect, legal theory is very important because European law, especially, clearly shows that legal doctrine is not neutral, the impossibility to just describe law, to approach it from a purely observational point of view, which, as is well known, is the fundamental presupposition of legal positivism. Legal positivism is a sound approach, that is, it makes sense, only if there is the possibility of a neutral description of law as it is. But we know that law is, inevitably, what it ought to be. From the very beginning, it was impossible to say what European law is without saying what it ought to be. In this sense, European law is a good evidence for declaring legal positivism inappropriate even to describe how law works: law does not work how legal positivism believes it does.

Then there is another discussion we have to be embarked, and then another existential decision we should make, and that has been made. Studying European law, should we use just a conceptual approach, reasoning, let’s say, in the manner of Begriffsjurisprudenz? Should we look at the letter of dispositions and then develop a system of concepts that are strictly formal? This is one possibility, but, actually, this possibility was rendered impracticable by European law from the beginning, because of how European law was done, mostly, as we know, by judges, through jurisprudence, cumulatively case by case. The other possibility is reasoning in the manner of Interessenjurisprudenz: law cannot be just explained through concepts, legal concepts (Begriffen), but should be understood through the interests, the aims (Zweckjurisprudenz), the purposes the law intends to achieve.

Now, especially because of the decision-making of the European Court of Justice, which has been, of course, the more effective and active engine – together with the doctrine – of European law (European law is nearly entirely a jurisprudential and doctrinal product, and is only at later consolidated by legislation), it was from the beginning clear, I would say from the Van Gend en Loos decision (1963), that the idea was that the European law has a clear purpose, a strong purpose, and this purpose is, let’s say, overwhelming; it even allows – as was the case in Van Gend en Loos – for contra legem interpretation and all the jurisprudence of the European Court of Justice till very recently has been developed in this direction. And this happened in a very undramatic, more or less soft way, often handling very tiny questions; Van Gend en Loos, especially, was an absolutely tiny issue, unimportant for governments and the public opinion. I don’t think there was any newspapers publishing a news about Van Gend en Loos once the sentence was issued. I don’t think there was any news in newspapers in Europe about that, but it was it was a legal evolution announced. Not to speak of Costa in ‘64, establishing the primacy (or supremacy?) of European law over Member States national domestic law. So, all this was made more or less contra legem, we know that, and this has been done once and again. I think this contra legem method is a characteristic feature of the jurisprudence of the European Court of Justice.

Now, this contra legem interpretation of law is possible mostly if we accept, you know, the Freirechtjurisprudenz – theorized firstly by Kantorowicz (Gnaeus Flavius), for instance in his essay Der Kampf um Die Rechtswissenschaft – which is a kind of radicalization of the Interessenjurisprudenz (there is however a slight difference between Zweckjurisprudenz and Interessenjurisprudenz, on one side there are Jhering’s views, on the other side there are Philipp Heck’s stronger theses, but I cannot enter into that now). Well, once it is assumed that the only possible conceptualization of European law is through the interests and the purposes to be achieved, then, of course, purpose will prevail over the letter of the rule and of course, it will be the strong lead for legal decisions.

Then there is a third existential decision which is connected with the two previous ones. Teleological interpretation cannot be a first choice in international law, so if you take that European law is international law, you would not prima facie use teleological interpretation, effet utile doctrine, and so on. A formalist approach would be more appropriate and justified. The third existential decision thus is basically a methodological decision, but with existential consequences. In this sense we might reluctantly accept to be Heideggerian: methodology and ontology are converging, they are more or less playing on the very same ground, although they present themselves as deployed on two different tables. The third decision is: how should the judge argue and reason about European law? And, also, how should the doctrine build its concepts around the European law issues? Now, here we face an alternative, there are two possibilities. Again, there is one possibility that is a formalist approach and on the other hand there is rather the possibility of a pragmatist approach. It is clear that from the beginning the European Court of Justice chose pragmatism, pragmatism in Richard Posner’s sense, so, I would say, not in a noble sense, not in the sense of William James, Josiah Royce, Robert Brandom, but in a much less articulate and opportunistic manner, whereby pragmatism means that one should reason in a consequentialist mood, let’s say somehow imitating “law and economics” methods, so that law is mostly driven by economic considerations.

Now, these economic considerations, in the jurisprudence, are often transformed into a sort of integrity arguments – anticipating, if you like, the approach proposed by Ronald Dworkin. The efficacy of law depends on its application in terms of a coherent system. This was, for instance, the strategy of Van Gend en Loos, but this, fundamentally, is pragmatism in a simplified way. This is very clear if we look at how the European Court of Justice uses the principle of proportionality. Proportionality, we know, has three moments – necessity, appropriateness and proportionality in the strict sense –, but the European Court of Justice more often than not remains stuck into the first one, the necessity step, while step two and step three are usually not elaborated. So, again, this is pragmatism assumed in an opportunistic way.

Now, one cannot understand all these three decisions, actually, without a much more fundamental and existential decision, which is the fourth one. And this has to do with politics, this makes European law fully political and this is why I think European law should be exposed to critical legal theory. European law is immediately political, even if judges sincerely try to avoid politics and even if it has been instrumental in depoliticizing the internal politics of member states. It’s somehow a tragedy now that member states have been “neutralized” – I would say using again, the terminology of this terrible lawyer, Carl Schmitt, and I apologize for that – because of the evolutionary effect of the jurisprudence of the European Court of Justice and then other, of course, decisions taken also by the institutional agencies of the European law both within European law and outside European law, as for instance the emergency legislation about the European financial crisis has been showing .

The fourth fundamental decision is the following. European law is a law of a specific order, a legal-political order, functionally driven by the idea of a specific material constitution – and this specific material constitution is, let’s say, what you find now every time expressed by Commission and also in the Treaties themselves – pointing at a highly competitive free market society. Now, this is a political decision, and this political decision was not clear in the ‘57 Treaties. It was made clear, I would say, with the Cassis de Dijon decision, and then it was consolidated by the Commission and the Treaties afterwards. So, it was first European law, as a jurisprudential law and also as doctrinal law, that it was thinking itself rooted in this way by material constitution. Now, this is, in a sense paradoxical because the term “material constitution” was coined by Hugo Sinzheimer in the Weimar Republic to conceptualize the opposite of the material constitution as it has been meant by the European Court of Justice, that is, not the highly competitive free market economy and society, but actually a society and an economy more or less cooperatively managed by workers and entrepreneurs, where the redistributive measures should have been, let’s say, overwhelming and, in any case, prevailing over the idea of the preservation of the free market and the private economic initiative.

So, we are now in a different world from the one that was projected by the Weimar Constitution and retaken in Post-war European constitutions, and this is unfortunately the result of European law. As a student and also as a teacher at the European University Institute I’ve seen it being produced, conceptualized. I remember very well several discussions in the 80s, also many discussions in the 90s on European integration through law, and also what the outcome of these many discussions has been – and what happened after the 2000 was even worse. We are now in presence of a kind of European legal fundamentalism with a strong missionary elements and ideology. Now European law has become, I believe, a fully ideological dispositive, serving a specific way of conceiving social relations. And this makes a fifth point necessary, my fifth methodological decision.

Once a law is on inspection basically ideologically oriented, and in this way it is applied and also taught in law schools, the law might and even perhaps should be exposed to criticism. So, the question here would be the following.  We had in a sense, to choose between apology and utopia – this is Martti Koskenniemi’s alternative about international law, and he believes that this is somehow self-destructive. On the contrary I incline to believe that such dialectical opposition might be elaborated as a constructive perspective. We should choose, true. But then: What is better, and more useful to European integration, being apologetic or being utopian? And if we choose the utopian mood, which is the European utopia to embrace?