Academic Vertigo

Legal scholars and political scientists are experiencing nowadays a form of linguistic awkwardness, if not vertigo, as the very words (judicial independence, rule of law, separation of powers, constitutionalism, or even democracy) with which they have accounted for legal and political realities for decades increasingly sound like… a foreign language. As these notions have moved to the very core of the contemporary battles over the future of democracy in Europe and elsewhere, they have gone through a period of unprecedented semantic instability and the analytical soil seems to be crumbling beneath their/our feet.

A polarized battlefield? Legal concepts in contemporary Europe

To be sure, lawyers’ toolbox never stood outside of the political battleground. Still, up until the late 1980s, most of these legal concepts had remained “sleeping beauties”, largely praised by Western legal professions, and yet taken as essentially idiosyncratic and undebated concepts in a context in which law and judicial institutions were far less salient in national public debates and far less exposed to transnational scrutiny than they have become. The progressive scholarly “rediscovery” of this vocabulary from the 1980s as well as its parallel “weaponizing” into policy objectives and instruments in both Member States and the EU still lack a full-fledged legal and political historical account (but see: Martin Krygier, or Mitchel Lasser for notions like “independence” and “rule of law”). The process of European integration, whether in Brussels or in Strasbourg, has certainly been a central laboratory in this process as its various (political, administrative, judicial) entrepreneurs backed their pan-European jurisdictional claims on the re-working of some of the key notions of national constitutional traditions, providing new meanings and scope to words such as “Constitution”, “separation of powers”, or “independence”. Similarly, the process of enlargement from the early 1990s to the years 2000s has been equally important as notions such as rule of law and judicial independence have entered the EU policy toolbox and famously served as the ground for a continuous monitoring for the countries applying to the EU.

But there is more. As many have now pointed out, contemporary populists have defined an essential part of their contentious politics as a battle for the control of law and legal institutions. Authoritarian regimes and conservative legal movements have assertively taken on the mantle of constitutionalism, “human rights” and the “rule of law” and extreme-right governments routinely come out with competing definitions of these notions. Suffice it to remember that the Hungarian government grounded its legal attack on the 2020 Conditionality Directive before the CJEU on the claim that the notion of “rule of law” lacks conceptual clarity; and that the former Polish government engaged in a comparative law study to challenge the Commission’s understanding of the notion of “judicial independence” in a memo. In a context in which the “twelve stars” of article 2 of the Treaty of European Union (human dignity, freedom, democracy, equality, the rule of law, respect for human rights, pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men) are taking an increasing legal and political role as vehicle for the European project, this process of polarization over concepts can only be thought to be starting.

A new approach to conceptual clarification

As democracies’ lexicon is going through a moment of profound destabilization with increasingly polarized definitions that hardly manage to camouflage political rhetoric, lawyers and political scientists may feel compelled to react as they are best placed to measure that concepts are not just intellectual constructions but essential tools for holding powers accountable. In other words, democracies’ concepts’ over-stretching and unsettling does not only complicate scholar’s work, it also obscures democracy. In such turbulent times, scholars may find some relief in moving back into the “ivory tower” and engaging in conceptual work of clarification – seeking to define in abstracto the true, authentic and eternal meaning of each one of these categories. While certainly useful, such (somehow nostalgic) attempts to “restore” some form of conceptual order may not be up to the current challenge. Rather than desperately trying to hold these classic legal notions constant over time and space, we should follow Walter Bryce Gallie’s invitation when it comes to working on “essentially contested concepts”: conceptual clarification of such politically debated notions will primarily come from the empirical study of their conflicting usages in practice. In other words, scholars versed in the political and legal theory of democracy are invited to take concepts’ definitional instability as their starting point, documenting and comparing these ongoing processes of re-signification of theoretical concepts as well as the web of related concepts they are embedded in across time periods and policy domains.

Towards a genealogical approach

What is therefore needed is a much thicker description of the current phase of semantic destabilization. This implies building a new questionnaire able to grasp the dynamics of contemporary legal controversies allowing them to bring historical depth and socio-legal context ¹⁾. Among the pending issues: how can we approach the temporality and pace of these semantic transformations and the debates that accompany them? What are the institutions, actors and forms of knowledge that can influence the meaning of words, and by what means? How do legal concepts move from one level (national/European/international) or one institutional context to another, and what sort of semantic conflicts arise from that? And what is to be made of the historicity of these notions, the “discursive memory” that is sometimes useful and sometimes cumbersome for social and legal actors?

While there is certainly a large variety of methodologies able to address this questionnaire, starting with the German history of concepts à la Koselleck or the Cambridge school à la Skinner, I contend however that a socio-genetic approach is better equipped when it comes to unpack the notion of “context” and reconstitute the complex “hermeneutic space” of legal concepts that continuously move back and forth from the legal and the political fields. In particular, I suggest to follow the genealogical prism of the “Archive” as understood by Michel Foucault which explores all the sedimented (and oft forgotten) forms of knowledge (including the lost voices and alternatives) that have accumulated over time. Transposed to our subject matter, this means repositioning the current controversies in the large European Legal Archive from the ashes of WWI, the colonial enterprises and the “great experiment” of the League of Nations when a vocabulary of supranational powers and international government was first crafted, to the blossoming of European legal projects in the post-WWII period and up to the rise of the European Union centrality.

Bringing historicity to contemporary legal controversies

The most obvious and immediate intellectual return from the archival approach lies in its capacity to display the historicity of contemporary controversies. It is not just a matter of avoiding the pitfalls of think tankers’ or policy makers’ short-termism who often fail to escape the illusion of Europe as a sort of a-historical laboratory, or to just “cool” the debate by moving backward in time. It is also a question of overcoming the spell of fallacious narratives such as that of the “backlash” which rests on an ex-post homogenization of “the past” as a long, linear and inexorable march towards “progress”, a narrative notoriously strong in the field of European law. As the European Legal Archive broadens the stock of knowledge considered to other national and transnational layers of archives (European, Atlantic, bilateral, intra-national, colonial, etc.), it provides a much more complex picture of legal notions which don’t take place in “thin air” but have to be understood in continuities with past controversies and in connection with parallel legal undertakings. Suffice it to look at some of the canonical notions of European law such as human rights, not from “core Europe” but from the former colonies and current peripheries to understand that such a notion may have been perfectly compatible with the idea of Empire at the time (Duranti). To put it differently, legal concepts have been continuously re-worked in context and for the sake of different endeavors and various constituencies, thereby carrying a large range of meanings, connections, scope, as well as social and political functions, etc.).

Re-thinking the normativity of legal concepts

The second advantage lies in avoiding to read contemporary controversies in terms of pathologies whereby legal populism would merely represent a form of “misunderstanding” or “misinterpretation” of canonical legal notions. Rather, it is more heuristic to consider how provisional doxa have been produced and contested over time and consider the system of enunciation that presides what Michel Foucault coined as the “the laws of what can be said”. The European Legal Archive provides a strikingly rich laboratory for a comparative assessment of such laws as they influence the production and contestation of knowledge, and in particular by questioning how some legal words “hold” better than others in front of these processes of destabilization. For that purpose, it may prove useful to distinguish thinner and thicker definitions of legal concepts. Thicker ones imply more than just a set of abstract ideas: they involve political imaginaries, institutional roles, policy instruments, as well as professional values. To the contrary, thinner versions emerge through formal definitions of “rights”, “rule of law” and “independence” which are increasingly disconnected from political imaginaries, professional values, or axiological preferences – thereby offering a weaker defense to contestations that may disentangle the notion (e.g. human rights) from its emancipatory and democratic underpinnings. The capacity of populists to reinject “a sense of national, civilizational and even racial superiority” in the definition of human rights or of rule of law has certainly developed in the interstices on the thinner and more formal versions of the “rule of law” that have become an unavoidable cliché of international organizations of every kind, thereby making it easier to point at the double standards of Western legal liberalism.

The genealogical approach: uncovering forgotten normative resources

The third and last added value of the genealogical approach concerns the normativity of these controversies. As one turns back into the European Legal Archive, he/she will retrieve conceptualizations that have not been recognized or retained in European law, because they have not managed to become part of the “standard” cognitive equipment of European lawyers. Such a methodological standpoint is not to be confused with the endorsement of a relativistic understanding of these fundamental notions which would limit itself to point at how historically contingent legal concepts may be over time. The aim here is not to downplay the political value that notions such as judicial independence, rule of law or democracy have acquired in the context of contemporary democracies. Rather, this détour via the European Legal Archive stands in the spirit of “immanent critique” – one that seeks both to track how core legal categories have become “the ideational basis for aspirations, tensions and contradictions within European democracies”. Retrieving these “past futures” of European law is not just interesting in terms of erudition as these forgotten pasts remain accessible and mobilizable. Although defeated or diminished in the course of European history, alternative European legal projects (social Europe, fiscal cooperation, defense of human rights, etc.) still work at the heart of Europe. This part of the archive can be seen through “objectives” and “values” inscribed on the pediment of current European treaties and charters, enabling to point out the “broken promises” of the European project or of European bodies (for example, looking at the small but tenacious European Committee of Social Rights in Strasbourg). As such they can be viewed as a “stagnant language” that is available for reactualizing and thus susceptible of being put back into circulation at the next “crisis” or conflict. As such, the European Legal Archive exposes contemporary normative blindspots of the contemporary conservation. It is this “paradoxal” underpinning, which both encompasses the provisional doxa about European law and goes beyond it, sometimes providing it with new (or forgotten) discursive resources, that remains to be explored.

As core legal concepts have entered into a phase of destabilization, this blog is therefore an invitation to collectively frame a new questionnaire and a new methodology enabling scholars to reposition their work and role in such polarized context without being alternatively drown into it or in denial of it.