Local Meanings of EU Law

I propose viewing law not as a universal (or European) science but following Geertz, as local knowledge. To demonstrate how this is of interest for understanding EU law, its effects, and the limits of integration through law, I will present some of the findings of a “classical” comparative study on the application of proportionality as an EU law principle in three different national contexts: France, England and Greece. But as I explain further, this kind of approach could develop (and is, indeed, developing) into an interdisciplinary study of the various ways in which EU law is understood, applied and experienced in contexts as diverse as the Paagalayiri market in Ouagadougou, the train-line connection between Paris and Marseille, or the camp of Moria, Lesvos.

Proportionality and integration through law

Proportionality is a core principle of EU law. The ECJ applies it as a prong-structured test in many fields of its case law, ranging from the internal market to citizenship and fundamental rights, and to the exercise of EU competences. While this case law is diverse, there is a core understanding of proportionality in EU law as implying the requirements of a legitimate aim, appropriateness and necessity. In the post-Weiss era, the ECJ usually also refers to the balancing prong, while the balancing test is often left to the national judges. No one denies that proportionality has been a catalyst for European integration. As a reasoning structure and a vocabulary, it offers a common framework allowing for dialogue between national and supranational courts. Proportionality is thus a core feature of the theory of constitutional pluralism. The spread of proportionality in EU law is part of a more general story of legal convergence in Europe and beyond. Indeed, proportionality is said to be one of the most successful legal transplants of the last decades and is understood as a foundational element of global constitutionalism.

In Local Meanings of Proportionality, I argue that this narrative of proportionality’s success should be nuanced, even when European legal systems are concerned. It is commonly recognized that the practice of EU law varies, despite the ECJ’s insistence on uniform application and on national judges’ function as les juges communautaires de droit commun. This is true for proportionality, too. In French, English, and Greek law, the vocabulary of proportionality spread during the ‘70s, and arguably, the influence of European (Luxembourg and Strasbourg) case law has been decisive in this evolution. However, French, English and Greek judges do not always apply proportionality as the ECJ would have, not even in EU law cases.

Taking legal diversity seriously

European lawyers’ usual stance has been to criticize national judges for “resistance”, inspired by excessive deference to the national legislator, ideology, personal interest, a bad breakfast, or simply a misunderstanding of EU law. Instead, I propose to take legal diversity seriously, as worthy of interest and study on its own. Following this approach there is no “correct” meaning of proportionality, even when such a meaning seems to be imposed by EU legal texts or doctrine. This requires us to get rid of our a priori assumptions as to the form, content and function of EU legal concepts. It implies seeing that EU legal practices, patterns of reasoning, concepts and formulas, what lawyers conceive as landmark EU law decisions – all of this expert EU legal knowledge – differs across space and time.

French judges, confident that they apply the EU law principle of proportionality, have tended to assimilate it to traditional methods of review, summarily called contrôle de proportionnalité. Usually, this results in a manifest error review and rarely questions the rationale of the reviewed public acts. In this way, the integration dynamics of the proportionality test have been “lost in translation”. This French-style resistance to EU law, while claiming to apply it, recalls the acte clair doctrine and stands for a particularly French vision of Europe as a continuation of domestic legal and constitutional traditions originating in the French revolution. This vision underpins French monism and is illustratively summarized in the motto “l’Europe, c’est nous” (the title of a fiche de TD that I had to teach when starting as a French academic in Toulouse). In this context, instances of explicit resistance to EU law, such as the French Data Network judgment by the Council of State, cannot be justified by reference to an axiological conflict between the domestic and EU legal orders but by a different appreciation of the facts.

By contrast, English judges always knew that the European proportionality test would impact domestic patterns of reasoning. For quite a while, proportionality was conceived of as a European head of review and applied by judges through the “gateway” of the statutes incorporating European law. English judges rejected proportionality as a reasoning method in domestic cases and conceived of it merely as a remedy for the violation of the UK’s international obligations under EU law, and much later the ECHR. For a long time, it was only in the field of European law that domestic courts took proportionality seriously and applied it by reference to European courts’ case law (in many cases, literally, as British judges have been at the source of landmark preliminary references to the ECJ). This expresses a peculiar English vision of Europe as an ensemble of international organizations, and a peculiar English way of receiving and resisting EU law: common law dualism.

In Greece, since its emergence during the ‘70s, proportionality has represented a principle coming from Europe (initially Germany, and later the ECHR and EU law). In this context, Europe designates an advanced, modern kind of polity to which domestic legal and political elites aspire. Due to its European pedigree, proportionality acquired the prestige of an undisputedly correct legal method. It was imported as part of European constitutional civilization and met no resistance until its explicit entrenchment in the constitution in 2001. Since the ‘90s, Greek lawyers and judges have delegated the definition of the correct scientific content of proportionality to the ECJ and have transposed Luxembourg case law into the domestic sphere through a process of translation. But contrary to the French translation-as-trahison, here translation has led to an EU law-conform interpretation of domestic law, with little regard for domestic patterns of reasoning. In the Michaniki saga, the application of the EU law principle of proportionality as applied by the ECJ led to a contra constitutionem interpretation of the constitution and undermined domestic constitutional goals. The Greek government now invokes this precedent to support the constitutionality of a statute allowing for private universities despite explicit constitutional ban.

EU law as local knowledge

While proportionality and EU law are mobilized by different groups of legal actors with different influences and ideologies, the local versions of proportionality are not merely instrumental to beliefs and interests that lie “behind” or “beyond” the law. Legal knowledge, and EU legal knowledge in particular, is locally constructed to respond to local needs and standards of argumentation. Different legal patterns of Europeanization are related to local visions of the law, local versions of formalism and local expectations of legal change. Hence, the local meanings of EU law express local legal imagination: the myths, taboos and rituals that inform legal practice, the visions of the judge, rights, society, the constitution, and the state that local lawyers share. As Paul Kahn (p. 2692) put it, “from within law, we can look out on science and politics – law offers an understanding of both. But it does so without collapsing into either.”

The formal application of proportionality in France expresses the taboo surrounding the grounds of public acts (motifs). It also expresses a particularly French version of formalism, dogmatism, which implies that judges affirm the legitimacy of the political or value-laden choices of public authorities as if they were scientific facts. In this context, law is seen as some kind of science, a rational enterprise, in which judges, la doctrine and law-makers collaborate in the search for a transcendent truth. Any process of legal change is seen as a step further in the long process of rationalization of the legislative will, which enjoys a mystic quality in French legal thought, as l’expression de la volonté générale. Rationalization is what local lawyers expected of proportionality too, when it was first imported from the hard sciences, and it still remains its main mission when applied as a European principle.

Quite differently, common lawyers are known for their aversion to theory and find it difficult to conceive of law as science. English formalism appears in the version of analytical formalism, implying for judges to follow different patterns of reasoning according to the text that they apply, paying little attention to substance. Proportionality as a continental European method, together with its fundamental rights baggage, have represented a fusion of substance and form that is strange to the game-like nature of common law judicial review and to the traditional image of the judge as a referee. English exceptionalism has not been problematic for domestic lawyers, as the Whig interpretation of history wants it that the enforcement of parliamentary sovereignty and the incremental evolution of the common law have long succeeded in protecting civil liberties in the UK better than in other European countries, without the need for substantive constitutional standards.

In Greece like in France, law is rational, scientific knowledge. Proportionality is hegemonic as a scientific method. It serves the interpreter of the constitution “like the microscope the biologist” (Orfanoudakis 2003, 58). But Greek legal science is not homegrown, it is imported from abroad. Legal transplants are the major mode of legal change in this context and are imported through a process of translating foreign legal concepts and solutions. Once imported, they are expected to produce social change “in what is almost a species of sympathetic magic” (Nelken in Örücü and Nelken (eds.), 2007, 118). Unlike von Jhering’s heaven of legal concepts, Greek legal science is not so much about conceptual rigor and consistency, but mainly about aesthetics. By establishing aesthetic resemblance between domestic and European law, the application of proportionality has represented the Greek society as modern and European, thus performing its Europeanization. This process of Europeanization has come at the cost of the normativity of the Greek constitution, as it is often detached from social needs and practices and it displaces other forms of local knowledge and alternative worldviews.

Local meanings of EU law and EU legal studies

EU law is a rich field of inquiry for comparative lawyers. But what can the study of the local meanings of EU law contribute to EU legal studies? This approach takes issue with two assumptions that, albeit implicit and often criticized, still underpin EU legal common sense: the uniformity of EU law and the “Europeanness” of EU law scholarship. It shows that local versions of EU legal concepts and techniques are not simply instrumental to legal actors’ strategies, nor are they defective applications of EU legal ideas. They express local legal imagination, local patterns of Europeanization, local expectations of EU law and local visions of Europe. These cultural features affect local lawyers’ ability to shape the content of EU law and the trajectory of EU integration, and are related to more general patterns of influence and dominance in Europe. By giving voice to alternative ways of legal thinking, the study of the local meanings of EU law aims to contribute to critical legal thinking in EU law.

While legal culture shapes how EU law is understood and applied, it is not stable and uncontested; it is constantly negotiated and changing, and so are the local meanings of EU law. The controversies surrounding EU law reverberate with more fundamental disagreements between legal ideologies within the same culture. They show that EU legal integration has neither been linear nor natural and point to actors who have contributed to the legal construction of Europe, beyond Euro-lawyers and Eurocrats. Take the example of the group of progressive common lawyers who since the late ‘80s promoted the spread of proportionality in their efforts to modernize English public law. When proportionality was finally established as a domestic method of reasoning in the mid-2010s, overcoming previous resistance, it signaled the peak of the process of modernization and constitutionalization of the common law. Since then, proportionality has provoked impressive constitutional transformation, “culling the sacred cows” of common law.

But as Brexit shows, convergence at the level of legal reasoning patterns does not necessarily further EU integration. In Pham, English judges opposed their proper, EU-law-like version of proportionality as part of a newly established constitutional identity, to the application of proportionality as a European head of review. The local meaning of EU law in times of crisis (Brexit, Eurocrisis, rise of Eurosceptic tendencies in France) points to the limits of legal convergence in bringing about “an ever closer union among the peoples of Europe”.

If the study of the local meanings of EU law is to acquire truly critical and transformative potential, it cannot be limited to an inquiry into national legal cultures of EU Member States. National legal actors do not monopolize the meaning of EU law. Its use by Euro-lawyers also reflects the characteristics of a legal culture. The study of third countries or of institutions of global reach, such as the IMF or the World Bank, can provide important insights into local actors’ visions of Europe, as well as on the role of the EU as a global actor or as a source of inspiration for other integration projects. The cultural context affecting the application of EU law can be defined by a discipline such as constitutional law, a professional group such as tax lawyers, an institution such as a law school, the Commission or the French Council of State, an enterprise such as Google, a social group such as women or migrants without passport, a religious group such as hijab-wearers, a movement or an ideology. The field of inquiry can be delimited from a spatial or temporal perspective. We might focus on EU law’s embeddedness in a broader social context, and thus explore the worldviews and imaginaries that EU law expresses or rather accentuate EU law’s agency, its transformative potential and its capacity to constitute new forms of existence and social realities. What these different projects share is the study of EU law as a cultural practice with a focus on the various ways in which it is locally understood and experienced.

Understood this way, the search for local meanings of EU law must be a collective project and should be enriched with concepts and methodological tools from other disciplines, such as cultural anthropology, intellectual history, science and technology studies, sociology of knowledge, political economy, geography, feminist, and critical race studies. This is the project we are currently developing with Joana Mendes. The search for the local meanings of EU law invites us to an exercise in legal imagination. This is a timely enterprise for EU lawyers.