EU law and Legal Theory: A Virtuous Connection 

DI MASSIMO LA TORRE

“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 – to understand and to discuss better how we should approach the study of European law; how could we approach in a sensible way the study of European law. Now, European law is a very strange creature. It’s 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, what happened with European law is similar to 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, then 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 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 a 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 in the 60s – there were not so many actually – there was this discussion. The dealing with European law, the way it was presented and conceptualized depended actually from the angle, and I would say even from the discipline, of the author of the book.

One perspective – that was the traditional one – was that the Common Market law was international law, so that it was 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.

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 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 and European law till very recently was a part of international law. Now 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 how much not neutral legal doctrine is, how much impossible is to just describe law, which is the fundamental presupposition of legal positivism. Legal positivism works if there is the possibility of a neutral description of law as it is. From the very beginning, it has been absolutely impossible to say what European law actually 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, 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 made impossible by European law from the beginning because of how European law was done, jurisprudentially also. The other possibility is to reason 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 engine – together with the doctrine – of European law (European law is entirely jurisprudential and doctrinal, and is only later consolidated by legislation), it was from the beginning clear, I would say from 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 way, solving very tiny questions; Van Gend en Loos, especially, was an absolutely tiny question, 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 any newspaper in Europe about that, but it was a bomb. Not to speak of Costa in ‘64, establishing the supremacy of European law over national domestic law. So, all this was made contra legem, we know that, and this has been done perpetually. I think this contra legem method is a characteristic feature of the jurisprudence of the European Court of Justice.

And this is possible only if we accept the Freirechtjurisprudenz (Kantorowicz [Gnaeus Flavius], Der Kampf Um Die Rechtswissenschaft) which is a kind of radicalization of the Interessenjurisprudenz (there is a slight difference between Zweckjurisprudenz and Interessenjurisprudenz, on one side there is Jhering, on the other side there is Philipp Heck, but I cannot enter into that now). Now, 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 two. Teleological interpretation is not usual in international law, so if you take that European law is international law, you cannot use teleological interpretation, effet utile doctrine and so on. The third existential decision is a methodological decision, in this sense I’m Heideggerian: methodology and ontology are converging, they are more or less playing on the very same ground, although they present themselves as playing 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, of course, there are two possibilities. Again, there is one possibility that is a formalist approach and on the other hand there is the possibility of a pragmatist approach. It is clear from the beginning that the European Court of Justice chose pragmatism – pragmatism in the 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 way, whereby pragmatism means that one should reason in a consequential way, let’s say imitating law and economics methods, so that law is driven by economic considerations.

And these economic considerations, of course, they are transformed in a sort of integrity arguments – using this idea proposed by Ronald Dworkin. This was, for instance, the strategy of Van Gend en Loos, but, fundamentally, it 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 has three moments – necessity, appropriateness and proportionality in the strict sense – but the European Court of Justice usually remains stuck into the first one, the necessity step, while step two and step three are usually not elaborated. So, again, this is pragmatism in the simplified 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 they try to avoid politics and even if it has been instrumental in depoliticizing the internal politics of member states. It’s 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 the emergency legislation about the European financial crisis has been showing in the past.

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 economic constitution – and this specific economic 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 a doctrinal law, that it was thinking itself rooted in this way by the economic constitution. Now, this is, in a sense paradoxical because the term economic constitution was coined by Hugo Sinzheimer in the Weimar Republic to conceptualize the opposite of the economic constitution as it has been meant by the European Court of Justice, not the 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, and this is 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 many discussions in the 80s, also many discussions in the 90s, and also what the outcome of this 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 is, I think, fully ideological, serving a specific way of conceiving social relations. And this makes my fifth point necessary, my fifth methodological decision. Once a law is fully and clearly ideological, the law should be exposed to criticism. So, the question is: We should, in a sense, choose between Apology and Utopia – this is Martti Koskenniemi’s alternative about international law, and he believes that this is negative, but I think this might be positive. We should choose: what is better, to be apologetic or to be utopian?