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The Common European Constitutional Culture

Its Sources, Limits and Identity

by Roman Hauser (Volume editor) Marek Zirk-Sadowski (Volume editor) Bartosz Wojciechowski (Volume editor)
Edited Collection 210 Pages
Series: Dia-Logos

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Introduction
  • Part I The Common European Identity and the Idea of Self-Constitutionalisation
  • European Legal and Constitutional Cultures
  • The Holy Grail as the Heritage of the Future – on the Search for a Common Legal Culture in Presources of the EU Law
  • From the Community of Law to the Community of Principles
  • The Political Contingence of Constitutional Voluntas and the Practical Continuity of Law’s Cultural “Project”. A Conversation Piece Concerning a “Narrative” of Discontinuity
  • Mediation and the European Legal Culture
  • Part II The Human Rights Culture and the Power of Judgment
  • On Human Rights Protection in the European Union Legal Order: Between Pragmatism and the Axiology of Integration
  • How Moral Judgment Competence Fosters Discretionary Powers: A Dilemmatic Approach
  • The Job of the Judge in the Context of Silenced People: The Opuz Case
  • The Emergence of the Identity of the Administrative Law in the Process of Building the Relation of the Administrative Courts vis-à-vis the Case Law of the Constitutional Tribunal
  • The Place of the Case-law of the Administrative Courts in the System of the Constitutional Control of the Activities of Public Administration
  • European Constitutional Culture and Civil Procedure

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Introduction

The fundamental postulate from Lisbon Treaty 2007 and other basic EU’s acts is to make “an ever closer Union among the peoples of Europe” (Art 1) and empower its citizens to participate in processes of will-formation because the rule of law and the principle of democracy have the same source of their legitimacy, notably, public spheres. Thus unleashing normative premises of institutionalization of discourse occurs Janus-faced as it runs towards the human rights interpretation and recognition, that means, it results in the interplay between universalizable normative claims and their interpretation coloured with the ethical fibre – be it national, ethnic or cultural.

Nevertheless, processes of Europeanization have been proceeding on the legal level basically, wherein the prominent role was casted by the CJEU, and also on the level of intergovernmental decision-making. In the aftermath of such a proceeding the EU may be comprehended in terms of the rights-based union and problem-solving entity though the emergence of the values-based community has been stymied and the transnational public spheres are rather thin. In other words, the ethical fibre became crumpled up or at least huddled for the effective governance performance what caused a democratic deficit and gave rise to debates on the EU as a post-democratic polity. There are disputes whether this oddity of the EU indicates its nobility or perversion, but the fact remains, that the Eurocitizens, in their post-sovereign states, became lost in the Hegelian extreme terms of the universal-formal rights (including the ECJ rulings in the Viking and Laval cases) and the individual interests what made them especially exposed on the economic crisis shocks.

The most important task carried out under the book is to undertake theoretical and jurisprudential research on the interrelations between the sense of the individual identity and the sense of national identity (including constitutional one) and the search for a common European legal culture. The outcome of the study in question will be a proposal of the foundation for a new paradigm of the EU law taking into account all of the said manifestations of identity. One of the main generators of the contemporary changes in the processes of globalization and legal integration is the specificity of constructing the law, namely its argumentative creation and application to specific situations, taking into account both the tradition and current claims to validity of one’s national legislation and its national recipients, and then confronting it with the diversity of legal systems developed by other states, supranational or international institutions. This ← 7 | 8 → process may lead to some vital questions about the community and the nature of the political community whose rightful member one could become. The current paradigm of law, which has provided for civil rights in the Western tradition already since the times of Kant, has resulted in the vision of Europeanization only through legal and institutional integration. This, in turn, led to the collapse of civic integration, as manifested in the phenomenon of “democratic deficit” or a “crisis of public legitimacy” in the European Union. This generated the need for a new paradigm which will expressly take into account the widely discussed postulate (mostly in public institutional structures) of the empowerment of citizens and the requirement to provide national identity, while seeking and promoting a common legal culture. The proposed change of the paradigm of law recognizes the EU law through the prism of the references to the vision of the Roman republic, where the key role was played by the citizen. The condition for creating such a common legal culture is thus the development of the processes of formulating public justification for normative claims which is to be uniformly binding for us. The processes of formulating public justification will also possibly criticise the moral and ethical beliefs of all the creators and, at the same time, recipients of the EU law (i.e., those that come from all the EU Member States), as to arrive at such law and such an interpretation of the sources of common law which can be regarded as a common and thus unifying rather than separating cooperative goal of the EU citizens. The concept of the European citizenship will gain an actual content if the said European identity, and thus also the sources of the legal legitimation of the EU legal system, become actually “communitised”, that is discursively determined in the processes of cooperative interpretation of the public politico-legal culture. This will perhaps allow, on the one hand, to overcome the contemporary crisis of the identity of the individual (understood as a rightful citizen having an actual influence on his or her rights and duties) while, on the other hand, to resolve and settle the emerging (or better yet – existing) conflict between the national identity and the European identity.

It seems like a considerably difficult task to speak of national identity and the sense of community with supranational structures (such as the European Union) and the international ones. In terms of the EU law, the national identity includes the constitutional identity of the Member State, and it is the responsibility of the European Union to preserve it. As a result, the Member States may require the protection of their own national identity and the required preservation of the constitutional identity of the Member State may constitute a legitimate interest which can give rise to the constraints of the obligations imposed by the EU law. Thus, the concept of the national identity manifests, besides the specifics of culture, language, customs ← 8 | 9 → or religion, the relationship with the national identity, reflected in the preservation of the basic state functions that condition the existence of the state as a separate entity. Moreover, national identity sensu largo is also treated as a requirement to consider the continuity of the existence of the Member States as sovereign entities, the respect for scientific cultures, the norms of national law, languages, ways of providing access to social security or the rules of the social – economic system of the state. In other words, national identity of a national community is understood as its collective self-consciousness, its self-determination, creating a self-image, as the entire content of the self-knowledge rather than the image of the national character constructed from the outside. In this context it is legitimate to treat the nation as a community-based group founded on the common understanding of certain values connected with the tradition of shared history, elements of culture and aspirations to preserve their identity. The foundation of the long process of unifying the European Union is a community of values which gave rise to the very process of the unification and continuous development. One of the pillars of this foundation is the existence of a common legal culture which is a source of the possible arguments legitimizing the EU law. Accordingly, the latter is seen not only as a universally valid system in the European Union, but also as the source of a shared knowledge about this world, what is of particular importance for the addresses of the law. However, it should be noted that the fundamental elements of the legal culture are rooted in a commonly shared world view and life of a given political community, and therefore they refer in some way to the broader concept of culture, namely to the public political culture and, at the same time, to the sense of identity of a specific political and legal community. Nevertheless, the identity of the values of a political and legal community, as the foundation of unifying the EU citizens, must also take into account the constitutional identity, understood as a recognition of one’s national cultural identity through the reflection on the fundamental rights accepted in a given society and nation. The identity refers to a catalogue of fundamental rights contained in the Constitutions of the respective legal systems, yet as it turns out, the contents and limits of these rights cannot be determined only by examining the very text of the Constitution. We as if move naturally from the instrumental rationality, characteristic for the operation of the state institutions, to the understanding and interpretation of the constitutional rights. The fact of discovering the specificity of understanding these rights which we are able to identify with, stands for the discovery of the constitutional identity. In the case of the European Union, it is already the very conception of the integration that influences the relationship of the Constitutions of the Member States to the EU law as well as the possibility of creating the constitutional identity of the Member States. In other ← 9 | 10 → words, we assume that the Union does not accept federal aspirations. Although recently there have been discussions on the effectiveness of the so-called European governance, there is a strong conviction that the Union is to be merely a form of a cooperation between independent states that are united to jointly deal with selected issues. The Member States remain separate entities in the international relations and they preserve their powers. The cooperation does not have a supranational character. The respective decisions are therefore the reflection of particular state interests and not of the organization itself. The standpoints of the individual Member States are represented in the European Council and the Council of the European Union which, alongside the Commission, are the most important EU bodies. The European Council sets out the main directions of the EU development, while the Council of the European Union issues most of the legislation (alone or in cooperation with the Parliament). For this reason, the so-called democratic deficit in the Union, namely replacing the category of “European people” with “European public opinion” does not have a decisive influence on the effectiveness of EU operations. If one accepts the justification of democracy referring to the category of self-determination by the people, it is difficult to decide how to determine the place of the authorities that democratically set forth the rights and duties of the citizens so as not to interrupt the communication between these authorities and local communities. In other words, what comes as a problem is an authentic representation of particular interests and the possibility of articulating them in the central authorities of the Union. The empowerment contained in the new paradigm of law, developed under this grant, will be largely based on the Charter of Fundamental Rights of the European Union, thus demonstrating the possibility of creating the identity of EU’s citizens by means of actively permeating human rights with content. In other words, the new paradigm of law will enable to generate a widely discussed, yet often neglected, public sphere in the European Union, understood as value-based community. The possibility of creating a value-based community, due to the proposed change of the paradigm of law, is of utmost importance for the further processes of Europeanization, since it constitutes a condition sine qua non for developing the European identity and for involving the EU’s citizens in the processes of a valid law making by means of communicative articulation of citizens’ will. It can therefore be assumed that the EU is currently dominated by anti-federalist approach, strengthened further by the financial crisis in the Eurozone. It therefore seems reasonable to consider the relationship of the Constitutions of the Member States with the EU law against the traditional conception of integration referred to as “the Europe of nations”. In this perspective, the national identity, including the constitutional identity, is not in contradiction with the objectives of the ← 10 | 11 → European integration. On the contrary, the multiplicity of legal languages, values and the sense of tradition are the qualities that build integration. What can be nevertheless perceived is a peculiar tension between the identity of the individual, the national identity and the European identity. Our task will be to demonstrate that it is possible to reconcile these identities without impinging on their essence and power. The latter will be achieved by showing that is it justified to speak of a formation of a common legal culture. Since the dawn of the history, Europe has been marked by a specific type of multiculturalism, though perhaps not the one that is widely discussed today, but rather the one related to the habit of integrating the central values and the characteristics of almost every new group encountered by the [European] dominant cultures. From the perspective of contemporary times, this phenomenon has resulted in a typical European cosmopolitan belief that the local or regional problems, such as those relating to Europe or the European Union, cannot be legitimately dealt with in a complete isolation from the claims made by the states, institutions or international organizations in the context of the issues that overwhelm the rest of the world, even those related with the processes of globalization. When searching for the answer to the question about our common identity, namely the identity of modern Europeans, it turns out that this concept is inherently problematic. Accordingly, it requires an understanding which refers us and our identity to the past. The answer to this question cannot be found in the future, possibly even not in the present, which is in many ways inscrutable. It plays a crucial role in the search for identity, tinged with self-understanding, which is [nevertheless] based on the solid structures of history, in our case, the history of Europe. The exploration of common aspects of history is meaningful and can be fruitful if we think and believe that it is possible to bridge the gap between the diverse cultures on the basis of a common tradition, which in some areas of values appears to us as a legal culture. It is undoubtedly a considerable bond in a shared vision of a normative world in which there is an axiological “hard core”, manifested in the form of the catalogue of the so-called inalienable rights (human rights) as a part of either the text of law, judicial decisions, public administration decisions, or of the ordinary course of thinking of the recipients of law who participate in this culture and who think through the prism of this catalogue. The answer to the question about a common core of national and community-based identity can be given only from the perspective of the deepest layers of philosophical self-understanding characteristic of the European culture and its integrative core, namely legal culture. What merits a particularly profound philosophical reflection is the legitimacy of law whose justification allows to create the very concept of the legal culture and identity. Yet, the explanation that there is some solid belief of the individuals as to the need to comply ← 11 | 12 → with the law, namely with law making entities and with the interpretative findings of judges and other officials, proves to be a complicated intellectual challenge. The history of philosophical and legal thought shows that the reflection on the identity of the legal culture still remains in a dialectical conflict between the thesis on the existence of the fundamental elements of the possibility of legitimising this reality and nihilism, namely the thesis on the hopelessness of such exploration and the failure to hope for their discovery, i.e. the discovery of legitimising the identity of the legal culture. The issue is to identify the structures that justify not only the existence of the law, but also its content in the form of a specific catalogue of values, namely to provide such arguments which would be the reason for its existence as to the form and content, and therefore its acceptance. Such a cognitive procedure would be an important step in discovering the European identity and the national identity of the citizens of the member states of this community as well as a crucial step in understanding that the Member States of the European Union, as a common legal culture, can develop and implement “the best possible” catalogue of human rights. This is also very important from the practical (social) point of view. Experience shows that the most stable systems of social organization are those which gain inner acceptance for the rules that bind their members, namely for the identity. The argument of power and the likelihood of punishment or pain constitute a weak social bond. The need to justify – legitimise the law is typically manifested in the social crises that undermine the hierarchy of accepted values and, consequently, the whole social order. Yet, it turns out – as mentioned above – that this is not an easy task and the literature suggests that the answer to the question about the objective basis of legitimising law is far from being straightforward. It is neither the issue which is often discussed in the theoretical and jurisprudential literature, because the interests of the legal theorists and the philosophers of law focus primarily on the problem of the internal validity of the law, mainly for practical reasons. In turn, the question of determining the foundations of the axiological identity and the identity of the legal culture, both for the individual legal orders and for the European community, appears to be a difficult theoretical problem of the so-called external validity of the law. Literature indicates that the ultimate principle of the existence of law could be included in the analysis of the regulative idea, namely in a certain flagship model which can never be absolutely determined. We, however, claim otherwise. Axiological identity and the identity of the legal culture of the European citizens, as the foundation of values that provide the institutional basis for each state and, contemporarily, also for the European Union, have their pillars which are referred to as transcendental arguments, namely those which legitimise this culture due to their universal character. Each of these arguments is firmly and ← 12 | 13 → permanently inscribed in the constitutional identity of the individual Member States of the European Union, and thus – indirectly – in the very institution. These arguments can be found in the ontological conception of natural law, in the transcendental argument of practical reason and in the transcendental-pragmatic argument of communicative activities. The European legal culture has axiologically matured on these three pillars which now constitute the source of its legal identity. The latter allows to combine the diversity of other cultural elements of the national identity of its individual states that often differ from or even contradict one another, yet which always find their identity in the legal culture.

In fact, it concerns the well-known question “Who are we, the Europeans?” – Is there any “we” or simply an aggregation of interests, at most members states? Perhaps, the third possibility fits best: processes of the recognition of differences, recognition of the other in his/her otherness give rise to the emergences of the Europeans recognized in their synthetic constitution in the making – “in-between” the national and supranational or even international legal system. Drawing extensively on the idea of universalizable normative claims as the source of human rights recognized as the “general principles of the Union’s law” shall we limit their understanding and claims to enforcement solely to the polity under construction (local constitutionalism) or become a visible and strong player on the international legal stage (global constitutionalism) – or rather should the EU remain the unsettled polity (soft constitutionalism)? Once again, who are we – the community of judges who are practicing philosophers? Or practicing politicians, perhaps? Finally, who is the “Master of the Treaty” and who should be? The CJEU’s ruling in Seda Kücükdeveci v. Swedex GmbH&Co. KG opens up the sources of the constitutional traditions of the members states but the question remains to whom and to what purpose it is supposed to serve – to public debates in which citizens would be able to cooperatively rethink and re-examine the past in order to render their common future open and trigger off the processes of the emergence of the European constitutional demos – or simply to judicial decisions made behind the closed door. The idea is to investigate who constructs the future Europe, with what kind of resources and thus whether this construction is solid enough to undergo several crisis that the EU must face now and certainly will have to copy with in the future, if survives.

Roman Hauser, Marek Zirk-Sadowski, Bartosz Wojciechowski ← 13 | 14 →

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Part I
The Common European Identity and the Idea of Self-Constitutionalisation

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Antal Visegrády DSc

University of Pécs, Hungary

European Legal and Constitutional Cultures

Abstract: The article characterises the notion of European legal culture in context of the main difference between the English and continental legal systems which lies in the perception of the role of the judge and the recognition of the role of judge-made law as a source of law. In the next step it indicates the principal components of constitutional cultures and its relation to general legal culture. Finally, it responds to the problem how to understand a common European constitutional culture.

Key Words: a source of law, constitutionalism, the common constitutional values of Europe, the role of the judge

I.

There are two approaches to the notion of European legal culture: on the one hand, it may be used to describe the common features of the legal cultures of European states, and on the other hand, to denote the peculiar sui generis legal culture of the European Union.

European legal culture forms part of Western legal culture and, in essence, it may be regarded as its cradle. It is characterized by the secularized nature of law, in other words, law is formally distinguished from religious and moral rules. The values of these systems of rules are transformed into law through political law-making. Although European legal systems are secularized, they regard themselves as being rooted in Judeo-Christian traditions. Their scale of social-organizational and political values reflects parliamentary democracy, political pluralism, the rule of law and a commitment to human rights. Besides a professionalized law-making process, European legal culture is also dominantly characterized by the professionalized application of law, but the conception of the role of judges means a breaking point to some extent within European legal culture taken in the traditional sense: judge-made law is a natural part of the Anglo-Saxon (common law) legal culture, while in continental (civil law) legal cultures the law-making and law-developing role of the judge is debated. However, European integration has contributed to the approximation of legal cultures and the above-mentioned differences seem to be dissolving in the legal culture of the European Union.

According to Hesselink, the most important characteristic of European legal culture is legal formalism, the dogmatic, positivist approach to law, in other words, ← 17 | 18 → textual dependence and the dominance of formal-logical reasoning. Although the formalism of the English legal system is not so strong as that of the continental legal systems, in this respect – in Hesselink’s opinion – there is still less difference between the English and the continental legal systems than between the English and American legal systems within the common law legal system, which means that there is greater coherence within European legal culture than within the common law family.

The European, and mainly traditional continental approach regards law as a coherent, logical system, in which the right (and only) answer to all arising questions may be found in the text of the statutes (codes) or by way of deduction. Jurisprudence is strongly positivist and the commentaries of legal scholars play an important role in the application of law, these commentaries are often relied on by the courts in their reasoning and in order to find the proper solution. Although the formalism of the 19th century was in due time mitigated by the spread of the method of teleological interpretation or the introduction of such general notions (e.g. good faith in private law) that broadened the judge’s discretion, the task still fell primarily on the legislator to adjust the code serving as a basis for the administration of justice to the changing social conditions and requirements.

The main difference between the English and continental legal systems lies in the perception of the role of the judge and the recognition of the role of judge-made law as a source of law. According to the continental idea, the judge’s role is solely to apply the law (this also flows from the principle of the separation of powers), legislation is the task of the legislator and the judge is merely the “mouth” of law. As opposed to this, the English legal system recognizes judicial practice or case law as a source of law, and judges may apply the law in the light of the changing requirements. As a matter of course, practice has shown that extreme formalism is untenable, and during the 20th century it was also recognized in several continental legal systems – to differing degrees and with phase delays – that judges make law in some way, which may become manifested in the guiding, orienting role of decisions in individual cases or in such legal institutions as the law uniformity decisions of the Hungarian Supreme Court.

At the same time, if one steps beyond the formalist approach and focuses not on differences between sources of law (as forms of manifestation of law), the difference between the English and the continental systems is reduced to the minimum and it is not greater than the difference between the individual continental systems. This difference is the most conspicuous on comparison with the American legal culture, which, in contrast with European positivism, places ← 18 | 19 → emphasis, during legal reasoning, not on sources of law, but on the consequences of the decision, in other words, it is rather pragmatist. Jurisprudence and legal training do not focus on the text either (be it statute or case law), but rather on its context and social correlations, the exploration of the roots and functioning of the law based on an interdisciplinary approach (in the disciplines of law and economy, law and society etc.).

As it is known the Romanistic-German legal systems could be divided into three legal groups.

European countries that belong to the Romanistic legal group are:

  1. France (as the “cradle” of the legal family);
  2. Belgium, Luxembourg, the Netherlands (that came to touch with French law as a result of French military expansion);
  3. Italy, Spain, Portugal (that were also heavily influenced by the German and the Swiss codes which makes them representatives of an intermediary type)

The characteristic features of the Romanistic legal group could be summed up as follows:

a) The code of central significance is the Code Civil (1804) in the legal family. This code has a clear-cut structure, free of any feudal elements, any “compromises”. It leaves almost no room for judicial discretion, its formulations are concise and simple. It is often called the “most bourgeois” civil code that laid the foundations for European codification.

The Code Civil is in force in Belgium, in four Italian regions, two Swiss cantons and with some modifications in Baden. Replicas of the Code Napoleon were enacted in the Netherlands (1838), in Sicily (1812), in Parma (1820), in the States of Sardinia (1837) and in Modena (1842). As an adapted translation of the original, it was instituted in Greece (1841), in the unified Italy (1865) and in Romania (1865). And finally, although not as the exclusive source but as primary inspiration, it influenced the Portuguese (1867) and the Spanish (1889) civil law codification, just like Louisiana and Quebec in North America.

However, the success of the Code Civil peaked in South America. It was took over in its original language in Dominica (1825), and later in translation in Bolivia (1831). The creative adaptation of European models (as mediated by French patterns) was first achieved in Chile (1825) that encouraged some countries to follow the lead (Ecuador 1861, Columbia 1873) and others to create their national code based on the Code (Uruguay 1867, Argentina 1869).

In Asia, the Code Civil made an impact on almost the same scale but in a far less homogenous way. Its principles are applied in Japan, and all four French codes were adapted in Turkey. In Egypt, the first codes (1867, 1883) were replicas ← 19 | 20 → of the Code Napoleon, the present code (1948) is a developed version based on it (which inspires Syria for adapted reception). The civil codes of Lebanon (1934) and Venezuela (1942) are also of French origin, although both are to be taken as significantly different to it.1

aa) The Code Civil regulates the relationship of the statute and the judge in a rather radical way. Judges are not allowed to interpret the statute “arbitrarily”, in matters of legal interpretation they have to turn to the authority of referé legislative (established in 1970).

ab) The Code Civil is the code of the “owner”. It was based upon the idea of a citizen who makes rational decisions, who is aware of the relevant information and the norms of law. The Code strives to guarantee the freedom of property and contract as much as possible.

ac) The Code finds a middle way between abstract principles and concrete (casuistic) norms. It determined the paradigmatic style for civil law codifications as well as codes on other fields of law for the future.

b) The Romanistic legal group (unlike the Germanic and the common law systems) is characterized by the prevalence of legislature. The influence of Roman law-quite paradoxically because of the early reception of Roman law – is much weaker.

The second is the Germanic legal group, its “members” are the following countries:

1) Germany;

2) Austria;

3) Switzerland;

4) the countries of Central Eastern Europe (especially the Chech Republic and Hungary).

As characteristics of this legal group, the following features are to be pointed out.

a) With respect to the development of the Germanic legal group, it proved to be a significant factor that, compared to other legal systems, the influence of the Roman law asserted itself rather late (only in the 15th century), although when came across it was very strong.

b) The code of central significance in the legal group is the Bürgerliches Gezetzbuch (1900) which is a conservative code (unlike the Code Civil). ← 20 | 21 →

The BGB was used in the recodification of the Greek civil law (1940), and in the codification of contracts in Poland (1933). It provided the basis for the Brazilian (1916), the Mexican (1928), and the Peruvian (1936) Codigo Civil as well as the codification of civil law in Japan (1898), Siam (1925), China (1929), and Thailand (1962). It also inspired the Italian Codice Civil (1942) which is quite remarkable as the Codice Civile of 1865 was formulated in French spirit.2

ba) The law of the BGB is the law of lawyers, it is characterized by a style that strives for accuracy, subtlety and abstraction. Its addressees are not citizens but primarily lawyers (of course, in the sociological sense of the world). Its institutional constructions and terms are artificial, its language is technical (only professionals can understand its true meanings). As its primary focus is not conciseness but accuracy, the code is often very complicated.

bb) The norms of the code are ordered in a specific way that more or less follows the structure of the Institutions of Justinian (personal and family law, the objects are types of property, the ways of acquisition of property, etc.).

Many think that the Austrian Civil Code (ABGB 1811) finds a kind of middle way between the lawyers’ of law of the BGB and the application-oriented law of the Code Civil.

The famous Swiss Civil Code (ZGB, 1912) has distinguished position in the Germanic legal family. The ZGB is “deliberately vague” at certain points to allow the judge to search for the solution that is the most appropriate in the given case. The code is characterized by the extensive use of general clauses that are to be interpreted by the judges in the particular cases.

At last, the Nordic legal group consists of the following countries:

1) Denmark;

2) Finland;

3) Iceland;

4) Norway;

5) Sweden.

The legal group can be characterized by the following features.3

a) This group is often regarded as a kind of intermediate version between the common law and the Romanistic-German legal systems.

It resembles the common law systems as it was hardly influenced by the Roman law and the wave of codifications in the age of the Enlightenment (e.g. the ← 21 | 22 → comprehensive codification of the civil law has not taken place yet). On the other hand, the similarity to the Romanistic-German systems can also be pointed out: judges do not have a central role in system and there is no normative precedent-doctrine.

The Nordic countries had lived in relative isolation for a long period. Their legal institutions were influenced by the French law in the 19th century, the German law at the beginning of the 20th century, and the common law (especially the law of the USA) mainly after World War II. However, despite all these influences, they kept their original character.

b) The co-operation of the Scandinavian countries is manifested in their laws as they make efforts to integrate the content of their legal systems. It could be exemplified by the Scandinavian Sales of Goods Act that was passed in every Nordic country (Sweden 1905, Denmark 1906, Norway 1907, Iceland 1922). The act is influenced by both the British Sales of Goods Act (1893) and the German BGB. The co-operation is facilitated by their common legal and linguistic traditions.

c) Last but not least, it should be mentioned that judges of higher courts and jurists of high authority play an important role in Scandinavian legislatures.

From this aspect the English legal system is really closer to the continental legal systems than to the common-law sister-system of American law, and the English and continental legal cultures may together be called European legal culture. As a matter of fact, behind the formalism of European legal culture – as opposed to the American – there is the ideological system of parliamentary sovereignty and supremacy, which implies trust in the legislator and the proper functioning of government (as opposed to the American lack of trust). As it is pointed out by Hesselink, the European approach is also less formalistic when the appliers of law do not trust other institutions, such as, for example, the institutions of the European Union.

The questions arises as to whether this lack of trust means the legal reflection of lack of political trust (the lack of trust in the institutional system of the EU on the part of the national political institutional system or, similarly to the American situation, the lack of trust in the political institutional system on the part of the legal institutional system), or the lack of trust of the appliers of law in other legal cultures, or it stems from both sources. From the aspect of our topic, it is worth examining whether lack of confidence in the EU may result from a lack of trust in “otherness”, another legal culture, in other words, whether the European Union has a different legal culture from the above-analysed common European legal culture basically characterized by formalism. ← 22 | 23 →

II.

Constitutional culture is part of general legal culture

Constitutional culture is a certain system of values of the human community geared towards creative co-existence on the basis of common rules of social cohabitation acquired through mutual consent.

The principal components of constitutional culture comprise the intellectual absorption of social co-existence, the existence of fundamental values for organic subsistence, of social accord around them, the reproduction thereof through universal behavioral rules of living and acting, a rendering of a certain systemic legal nature thereto, and a particular attitude towards them within the society. In social practice these components are historically expressed in their systemic integrity, as well as in a more fragmented manner.

Constitutional scholars often use the notion of “constitutional culture” in the plural. When talking about constitutional cultures the emphasis is put on the systemic properties of their formation. For example, the notion “Verfassung” in Germany acquired broad usage in the 17–19th centuries, when it was used to denote laws of fundamental importance, containing norms, which aimed at sustainable and lasting perspective. The term applied to the “Capitulation Act” of King Ferdinand III in the elections of 1648; the Peace of Westphalia,

1803; the Final Act of the Principal Royal Standing Committee etc.

Professor Cheryl Saunders, in turn, singles out the constitutional systems of the United Kingdom, the USA and France Robert Goodin stresses the existence of features that are common to constitutions of various countries.

Each country and nation has gone through its individual path of formation of constitutional culture and establishment of constitutional realities, borrowing to this or that extent the experience of others, making additions and amendments emanating from its own system of values. The essential and fundamental aspect is that constitutional culture and the Constitution itself can not be a commodity that is imported or exported. These realities are formed upon the basis of a particular society’s system of values.

Constitutional culture is determined by a number of factors:

  1. trends in the development of the society and the degree of social validation of man;
  2. the nature of relations between an individual and the society;
  3. value system priorities of the social community;
  4. the level of development of production relations;
  5. the level of social protection of an individual; ← 23 | 24 →
  6. the level of legal and philosophical perception of social phenomena and patterns;
  7. the level of political culture and legal awareness within the society;
  8. the existence of socio-economic prerequisites for the establishment of social accord;
  9. the ideological orientation of state authorities and the level of their understanding of the responsibility for the society’s future;
  10. the nature of impact of universal values and the degree and possibility of harmonization thereof with the qualities of national identity;
  11. the nature of impact by exogenous and endogenous factors on systemic stability, etc.

Constitutional culture is a continually developing phenomenon, which acquires a qualitatively new essence and sub- stance in conditions of a democratic state and civil society. The latter is determined by the role and significance of the Constitution in these societies. The constitutionalization of social relations is an important accomplishment of democratic civilization in the sense that such societies are characterized by non-discrimination, pluralism, tolerance, solidarity, respect toward human rights and freedoms and protection there-of, clear-cut and reliably guaranteed separation of powers, and the administration of justice prevails.

In a society like this the following become the main descriptors of constitutional culture:

  1. the place and role reserved to an individual within social relations, recognition of and respect towards his dignity, guaranteeing rights and freedoms as ultimate values with direct effect:
  2. restricting authority by law;
  3. separation and balance of powers:
  4. establishment of the power of the people, elected nature and accountability of government;
  5. optimal decentralization of political, economic and administrative powers, guaranteeing free economic competition;
  6. the existence of a judiciary system endowed with functional, structural, material and social independence;
  7. harmonization of domestic legal system with international legal norms and principles;
  8. assurance of a dynamic equilibrium in the chain functions-institutions-competences;
  9. the degree of assuring Constitution’s supremacy and stability. These principal descriptors may be expressed differently in various constitutional systems. ← 24 | 25 →

Constitutional culture is not an abstract notion; it is manifested in all aspects of the existence of social organism. It reveals, first and foremost, the system of values that underlies social interaction and the operation of state machinery. The level of constitutional culture determines particular constitutional solutions, and the progressive nature of a Constitution as a country’s Fundamental Law. Constitutional culture is incarnate in the laws and statutes enacted, the political organization of a state, the operation of and relations between political institutions and branches of government, the social substance and the legal capacity of an individual. Lessons learnt from history invariably indicate that, after all, the main yardstick for gauging the level of constitutional culture in a country is the degree of constitutional democracy, and raising it is the foremost requirement of constitutional culture.

III.

The formation of a common European constitutional culture is not therefore the product of an arithmetic summation, nor of a progressive geological stratification, but rather of the process of communication and reception between the divergent interpretations of different constitutional cultures.

According to the constitutional basis of member states of the European Union, the principle of integration of the Union forms the legal order of the Union as a constitutional order.

The constitutionality of European integration in the relation to constitutions is (was) always certified and a lot of changes in the constitutions was needed for the development of integration. The acceptance of communitary law (its criteria) usually does not interfere with the sovereignty of states. It however has no “supra-national” authority in the typical sense of word.

The legal order of the European Union belongs still to the international order, it experiences however a process of special centralisation. It however still does not have the qualities and values of a positive law of state, it is a “special constitutional order”.

The process of integration has caused from the start constitutional legal adaptation of member states. Generally it does not cause transcribing of texts of constitutions and follows pragmatically and peacefully. It of course depends on the nature of national constitutional system. The effect of constitutional integration is: the execution of competences and activity of european institutions influences the inner separation of powers. The transition of competences has made and is making the executive power of state stronger, that can influence the position of national parliaments, so the inner separation of powers. ← 25 | 26 →

The constitutional systems, especially those of the member states of European Union, are becoming the so-called open systems, when the constitutions reflect not only the supranational law, but also the creation of common supranational institutions. The constitutions have not lost the character of national document, which captures (in fact conserves) the system. The ruling of a process is slowly asserting into the texts of constitutions of countries of the European Union, through which the country applies for the new supranational power, including the possible transition of sovereignty.

From the viewpoint of constitutional law, the constitutions of member states are still describing the communitary law more as an international law than their own law, even when they accept it as a directly acting law, which is prefered before the laws.

The states are traditionally basing their political identity upon the constitutional culture, which can be called constitutionalism: this culture has elements of stability and durability. It sets up an order and constitutional institutions.

The European Union tries to define its own constitutional culture according to its identity. The new constitutional order is based upon national constitutional cultures. The constitutional value of national states is considered to be a basis of the value of integration, because it is also created by law (principles).

There is a mutual impact among the EU and the member states’ constitutional cultures. Let see two examples. The doctrine of the “separation of power” has traditionally proposed that the states is divided into the separate and distinct arms of Executive, Legislature and Judiciary, whereby each arm acts as a “check and balance” on the others.

However, until 2009 this doctrine was not observed in the UK, with the Executive (the Government) drawn exclusively from members of the Legislature (Parliament), while in the office of the Lord Chancellor the three arms were fused: the Lord Chancellor was a Cabinet Minister, a member of the House of Lords and head of the Judiciary.

In July 2003, the Government announced plans to abolish the post of Lord Chancellor (making the Lord Chief Justice head of the judiciary, as “president of the Court of England and Wales”); abolish the system of Law Lords sitting in the House of Lords and replace it with a separate Supreme Court; and to establish a new Judicial Appointments Commission.

The Constitutional Reform Act 2005, which came into force in April 2006, considerably modified the role of the Lord Chancellor and in so doing, strengthened the independence of the Judiciary. ← 26 | 27 →

The judicial functional of Parliament ended in 2009, when an independent UK Supreme Court was established. The court assumed the jurisdiction of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. It is an independent institution, presided over by twelve independently appointed judges, know as Justice of the Supreme Court.

Of course, this reforms were the results of the impact of EU.

At the same time the United Kingdom also have had an impact for the EU constitutional culture. Namely the European Court of Justice in Luxemburg become a precedent court.

The communitary law in its international legal nature also has ties to the natural sources of international public law, which contains legal constitutional values. It concerns mainly the long-term development of human rights and democratic principles.

At the same time the human rights become a part of international law and especially in the way of custom law and on this basis as a law recognized by civilised nations. It does not mean, that the common international law would include all components of human rights, but it includes the relations to humanitarian norms and to the international criminal law.

The internationalisation of the concept of the rule of law and democracy is another source of the norms of constitutional nature.

The international European system is represented strongly by the “dominance” of the European Court for Human Rights, the organs of the Court themselves have spoken out in the sense, that “Court aims to be considered a constitutional tool of European order”. Legally, the matter and content of the activity are classifiable as constitutional legal ones. The whole European treaty is inspired by national texts of founding states. The Court contributes to the homogenisation and to the fixing of the normative European space. The Court has practically defined the minimal standard of the protection of human rights. Mostly it happens so in the relation to the communication between the national constitutional courts and the Court. The Court in Strasbourg contributes to the development of judicial monism and to the federalisation of Europe.

The decisions of court can lead to the nullifying or to re-interpretation of laws, jurisdictional decisions, especially those of constitutional courts. Generally one can say, that the time after the World War II is typical for its convergence of the constitutional sources of the single european states and the EC/EU. Especially the treaty of Amsterdam strengthens the nature of European Union. One can also speak about a “common european constitutional culture”, also about a legal ← 27 | 28 → property, heritage. This culture is common to the member states, it has formed itself and it was formalised.

The common constitutional values of Europe are based on the philosophy of the values of liberal democracy, which consists of a certain “triarchy” of this philosophy: the democratic system, rule of law and basic rights. Upon these values the so-called western democracy is built.

Recently there is a tendency to sort human rights into a system of hierarchy. “Thus international law agrees on fundamental human rights that are ius cogens, for example the right to life, prohibition of torture, slavery and legal penalty with retrospective effect. These fundamental norms are obligatory without exception, contradicting international legal norms are invalid (ineffective) placing human rights on top of the hierarchy. More numerous are the so called erga omnes rights, that are obligatory to all parties. Respecting these rights so essential for the international community serve the interest of all states.

During the highly complex process of globalization, human rights development has been heavily influenced and human rights themselves have had their own wide range of effects on globalization. Along with intensifying international cooperation, basic human rights have become primary subjects of international law, several brand new rights emerged in response to global challenges and also universal human rights initiations have stimulated globalization.

Globalization has always had negative effects on the realization of human rights in many aspects of everyday life, but particularly so with increasing disparities. Globalizing economies have produced a number of rights abuses, arousing only slow-motion reactions – which are also controversial ever since – from the economic and financial bodies of global government. Instead of helping to solve problems, economic sanctions imposed on human rights violators only worsened the situation caused by the violations. It is now widely believed, that although human rights abuses cannot be overlooked, instead of or along with economic sanctions alleviated with a combination of programs promoting human rights are to be implemented.

The establishing of constitutional judiciary in the majority of states of continental Europe is an important phenomenon of the development of constitutionality after the World War II in Europe, but it is also an important article, which influences the inner relations in the European Union of that states, which are its members and have established the institutional court. The phenomenon of the activity of those constitutional courts demonstrates itself in that they had to separately sort out the relation of their own constitutional system to the system of communitary law, to the organs of EC/EU and also to the judicature of the ← 28 | 29 → European Court of Justice. The constitutional courts have so decided about their role during the control of compatibility of their own laws with the constitution, but also about the character of “superiority” of communitary law to the own constitutional order.

Last but not least on a terminological problem.

Harmonization of law in the EU is a normative concept, i.e. a process of creating common standards across the internal market. For many thinkers it means a total uniformity.

This is why I find better the descriptive concept of approximation, which means that the member states must align their national laws, rules and procedures in order to give effect to the entire body of EU law contained in the acquis communautaire.

Bibliography

Antal Visegrády: Jogi kultúra, jogelmélet, joggyakorlat (Legal Cultures, Legal Theory, Legal Practice) Budapest/Pécs, 2003.

Kondorosi F. – Visegrády A.: Európa: az állam- és jogfejlődés irányai (Europe: the directions of state and legal development.) Hvgorac, Budapest, 2011.

Constitutional Cultures, Ed. by M. Myrzykowski, Warsaw, 2000.

Gagik Harutyunian: Constitutional culture: The Lessons of History and the Challenges of Time. Yerevan, 2009.

Francis Snyder: Modelling of EU constitution, http://www.eurozine.com/articles/2004-02-19-snyder-en.html

Karel Klíma: The Costitutional Legal Nature of the European Union, http://www.enelsyn.gr/papers/w4/PaperbyProf.KarelKlima.pdf

Multicentrism as an Emerging Paradigm in Legal Theory, Eds. by M. Zirk-Sadowski, M. Golecki, B. Wojciechowski, Frankfurt am Main, Berlin, Bern etc. 2009.

Morton E. Winston: The Philosophy of Human Rights, 1989. ← 29 | 30 →


1 See Varga Cs.: A kodifikáció, mint társadalmi-történeti jelenség. (Codification as a Social-Historical Phenomenon) Akadémiai Kiadó, Budapest, 1979. 117–118.

2

3

← 30 | 31 →

Karolina M. Cern

Adam Mickiewicz University, Poznań, Poland

Bartosz Wojciechowski1

University of Łódź, Poland

The Holy Grail as the Heritage of the Future – on the Search for a Common Legal Culture in Presources of the EU Law

Abstract: Firstly, the articles investigates the key components of what is contemporarily perceived as the sense of common (European) legal culture. Secondly, it analyses one of the most characteristic judgments of the Court of Justice of the European Union, namely the decision of 19 January 2010, issued on C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. Finally, it argues why and in what sense the answer to the question about a common core of national and European identity may be given only from the perspective of the deepest layers of philosophical self-understanding characteristic of the European culture and its integrative core, namely the legal (constitutional) culture, in other words – from the perspective of the future.

Key Words: multicentricity, constitutional identity, European self-constitutionalisation, discursive competencies of Euro-citizens, tradition that opens up the future

Introduction

Modern man, differently than within the last few thousand years, experiences the phenomena of time and space, both in the individual, socio-cultural and institutional perspective. The changes in the surrounding social reality that take place under the influence of broadly understood processes of globalization and European integration imply the disappearance of the old ways of life. As a result of these divergent processes we typically experience a variety of feelings. On the one hand, we experience greater freedom, various possibilities of being and acting that were previously reserved only for the elites, or that even remained in a dream world or fiction. On the other hand, these rapid and multiple changes generate frustration, ← 31 | 32 → disappointment, a sense of uncertainty and instability, or even a sense of the loss of the ability to understand the world and a membership to the community.

One of the main generators of these transformations is the specificity of the construction of laws, namely their argumentative development and application to specific situations, taking into account the tradition or the current claims to validity of the national legislation and its national recipients as well as supranational or international institutions confronted with the divergent legal systems of other states. This process can lead to the inquiry about the community and the nature of the political community that one could be an eligible member of.

Legal and institutional functioning of the European Union, including Poland as its Member State, has generated worldwide unique phenomenon of multicentricity or in other words, multifaceted polycentricity of the legal system. Multicentricity, understood as the division of powers quo ad usum between national and EU authorities, stems from adopting the principle of supremacy of EU law and the primacy of the principle of effectiveness (éffet utile) of that law in relation to the national legal systems. The said polycentricity of the sources of EU law (the level of various EU institutions, the level of national institutions and the level of multilateral agreements between Member States) undoubtedly drives the debate about national and European identity as well as about the alleged common roots of supranational law, like EU law.

Part I

Multicentric system is based on a logic far different from the one adopted both on the basis of Member States’ systems, as well as within the EU law whose hierarchy of the sources of law, issues of legal validity or the hierarchy of law enforcement bodies are still regarded as crucial research issues2. This entails the change in the paradigm of understanding law and its operation as a system, particularly in its vertical structure. What is being challenged here is the view on the monistic perception of law ← 32 | 33 → presented by Hans Kelsen or Herbert L. A. Hart in favour of multicentric3 or even global legal system4. It turns out that the classical dynamic – static relations between the norms are not sufficiently adequate to describe the current system (systems) of law, both with regard to the reconstruction of the types of systems as well as a specific system. This is mainly due to the recent emergence of many different and mutually independent lawmaking centres. In this context, we can talk about multicentricity of the legal system5 from the perspective of ‘the geometry of the three planes’6: national law, EU law and the law created under the Council of Europe. ← 33 | 34 →

As aptly noted by Wiesław Lang, in the case of multicentricity we deal with such a situation that ‘in one legal order there are many equivalent sources of law which do not form a hierarchical system (the hierarchy of norms)’7. The thesis about a hierarchical and pyramidal ordering of the legal system was a widely accepted one so far8. Generally speaking, in the monocentric system, a higher-level norm is the basis of the validity of a lower-level norm, as long as it was established by a competent authority on the basis of a higher norm (dynamic relationships indicating institutional and lawmaking dependencies) and a lower norm is related with a higher one like a specific claim is related with a general one (static relationships indicating the differences in the validity of the norm on account of its content). It does not mean that such relationships do not exist at present, but rather that not all relationships between norms can be arranged in an obvious vertical or horizontal manner, since they are contemporarily replaced by the so-called circular or looped hierarchy of norms9.

In this approach, even though the legal system becomes clearly reflexive in nature, it is at such a high price that in its framework the existing conception of validity, based on the principle of legality, is displaced by the procedural programs based on the idea of regulation10. The analysed problem touches upon the displacement of the idea of government (the existing normative idea of a democratically legitimized mode of the exercise of authority) – widely discussed in the literature in the field of European integration – by the idea of governance (the new idea of the effective exercise of authority where the normative core is clarified through a series of mainly operative rules of action tailored to specific political ← 34 | 35 → and economic areas). This new vision of government as governance, rather enthusiastically perceived in the eighties or even nineties of the twentieth century, is contemporarily quite critically discussed and often seen as one of the causes of democratic deficit in the EU in the framework of the separation of powers (i.e., both in terms of legislative, judicial and executive power)11. The groundwork for these reflections is intra-European discussion on good governance by the EU bodies and on good administration. A representative example here is the issue of the so-called judicial governance, i.e. the assessment of a well or badly governed court, which includes an assessment of the administration of the courts and the so-called governance of adjudication12.

In other words, the tendency of the modern legal system is its network arrangement, including mono-centric structure for each of the respective levels or ‘subsystems’, which is particularly evident in the relation between the EU law and the laws of particular Member States. In this sense, these systems are complementary, i.e. they mutually coexist, thus creating a complex system which manifests a peculiar hierarchical consistency.

It should be noted that although the phenomenon of multicentricity does not in itself determine a conflict of norms, the risk of such collisions is undoubtedly greater in a multicentric system than in a monocentric one13. The problem here concerns mostly the aspect of law application, which is connected with competency disputes, namely the mutual competition of many decision-making centres taking place at the abovementioned levels. Multicentricity indeed requires the acceptance of the fact that the external bodies my take binding and effective decisions regarding the application and interpretation of law in a given state. In other words, as a result of the European integration in the legal dimension, although we deal with one legal order of a Member State, it has a multicentric character in the sense that it provides the grounds for quoad usum division of powers between national and EU authorities14.

Multicentricity of the legal system involves actual issues of the conflict of laws rules, emerging at the level of the harmonious quoad usum functioning of both subsystems (national and European one) that, after all, create one legal space. These ← 35 | 36 → changes specifically affect primarily the application of the law by the courts, and as it turns out, they give rise to the most serious problems. The latter is due to the fact that in the face of the obligation imposed on the national judge to apply national law, the EU law, and the international law, namely national, supranational and international standards, rules and principles, s/he should be able to identify the legitimate and appropriate elements of the legal system necessary to adjudicate a given matter. The judge should be able to resolve the conflict between colliding principles or standards. This task is undoubtedly complicated by unclear, questionable and ‘sensitive’ political bonds and relationships between national law and EU law as well as competence disputes between the national and European courts that give the impression of ‘jurisdictional chaos’15.

Systematic reflection on the contemporary law, the process of its creation and application, ensuring legal certainty and security, its purpose and justice are further complicated by the assumption of deeply rooted cultural connections of law. The concept of legal culture brings forth numerous methodological and research issues. Contemporary scientific reflection on law, and especially the legal anthropology, comparative studies and sociology of law deal largely with confronting cultural spheres of different legal communities and societies treated as a system of institutions that operate through the processes of socialization, in order to ultimately compare humanum that can be observed in different cultural systems and, in addition, at different times. This is due to the generally accepted belief that every legal order has its mystical, ontological and functional origins in culture. Thus, the analysis of law is not free from the cultural studies, in which it operates or will operate. This raises the further question as to what is meant by the concept of culture.

Unfortunately, the latter is considered a difficult task, subject to endless disputes, as demonstrated in particular by anthropological research16. Maria Borucka – Arctowa indicates that what proves most compelling and useful for the reflection on law is the normative concept of culture in relation of which the legal culture can be defined as “all normative patterns of behaviour and values connected with these norms, socially accepted, learned (or rather acquired through interaction ← 36 | 37 → and mutual relations between individuals and groups of individuals), passed through the symbols of meaning within one generation (diachronically) or from generation to generation (synchronically), i.e. when this process is characterised by a certain permanency”17. This normative approach to culture allows for a fairly clear indication of the importance of the constitutional culture in the context of currently controversial problem of national identity. The ‘constitutional culture, one might say, mediates between universal norms and particular contexts. One might also say that the constitutional culture itself is then formed through what could be envisioned as a circular process, in which constitution, constitutional culture and cultural (including national) self-understandings in a more general sense come to influence and, ideally, reinforce each other’18.

Due to the current research on the concepts of nation, or on different forms of nationalisms, what becomes increasingly recognized in the scientific centres is a historical-cultural thesis about constructing these concepts, especially in the medium of the Enlightenment humanist and social reflection which is contemporarily strongly manifested. Therefore, talking about the national identity and about the sense of community with supranational structures (such as the European Union) or international ones, not only proves considerably complex but, above all, socially ‘sensitive’. In accordance with the first sentence of article 4 paragraph 2 of currently binding Treaty on European Union (TEU), ‘The Union shall respect (…) national identity (of the Member States), inherent with their fundamental political and constitutional structures (…)’19. In the context of EU law, national identity involves, above all, the constitutional identity of the Member States and the preservation of the latter constitutes the obligation of the European Union, although as a result of this responsibility, the Member State may require the protection of ← 37 | 38 → its own national identity. However, the required preservation of the constitutional identity of the Member State may constitute a legitimate interest, which could give rise to the restrictions of the obligations imposed by the European Union law20.

Thus, the concept of national identity includes not only the specific culture, language, custom and religion, but also the identity of the state, which manifests itself in the behaviour of the basic state institutions and functions that determine the existence of the state as a separate political entity. In addition, a broadly understood national identity can be also treated as a requirement of taking into consideration the continuity of the existence of the Member States as sovereign entities, respecting scientific cultures, norms of national law, languages, the ways of providing access to social security or the principles of socio-economic development of the state21.

All the above phenomena complicate our understanding of what is contemporarily perceived as the sense of common (European) legal culture which takes into account the sense of national identity, or more precisely, constitutional identity. What comes to the fore here is a momentous role of the Court of Justice of the European Union (CJEU)22. On account of the scope of this essay it is not possible to present a detailed analysis of its case-law; therefore we simply aim at indicating one of the most characteristic judgments of the Court of Justice, namely the decision of 19 January 2010, issued on C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. which concerned the problem of outlawing discrimination on grounds of age. The decision in this case is of particular interest for the analysis of the Court of Justice views on the question of the direct effect of EU directives. What is characteristic for this decision is the fact that the CJEU recognised that the principle of non-discrimination does not stem from Directive 2000/78/EC23. ← 38 | 39 → The Court noted that this principle belongs to the general principles of the EU, and thus it constitutes a category which does not belong to the secondary legislation (e.g. EU legislation, such as the regulation or directive; international agreements entered into by the EU etc.) but to the primary legislation, that is to the law established by the founding treaties (or amending treaties), general principles of law or – importantly – common law.

What proves to be of utmost interest from the perspective of our discussion is the implication of the above court decision which opens the possibility of a broadly understood reference to ‘non-written’ and ‘non-EU’ sources rather than a mere EU law. It should be indeed noted that non-discrimination principle in respect of age was considered as a general principle of EU law, which should have its origin in the common constitutional traditions of the Member States and the international agreements that bind them24. The Court: a) when pointing to ‘pre-sources’ of non-discrimination principles (i.e., recognizing that such sources exist), b) which can be also found in non-EU public international law (its principles and the Universal Declaration of Human Rights as well as in the constitutional traditions of the Member States), c) concluded that non-discrimination principle ‘permeates’ from the said legal orders to the European Union law which, after all, constitutes a part of the international legal community. CJEU therefore considerably enlarged the sources of EU law to axio-normative references. Two issues stand out to the fore here.

Firstly, it can be assumed that the adjudication with the use of general principles was presented by CJEU as a particularly legitimized method that complies with the rule of law of the applied EU law, because – as the Court intends – it is to provide the grounds of the normative unity and axiological pluralism of the EU law harmonised with the international law and the laws of the Member States. Normative unity must be therefore understood here as deontologically perceived threshold weights for the harmonised pluralism of values in the sense that they never exceed the said burdens25. ← 39 | 40 →

Secondly, the problem also concerns the legitimacy of EU law, i.e. the fact that the possibility of justifying common norms and shared values and giving reasons in their favour is of fundamental importance for a reflective development of historically formed national identities and for jointly constructed community identities of the European citizens. What comes to the fore here is the principium of democracy. Justifications are designed to shape the area of normative activity. Although these activities are designed, on the one hand, by sovereign legislators (understood as political and legal institutions of the Member States) and, on the other hand, by the EU institutions, in the area of mutually acceptable claims and justifications, they each time encounter the European citizens as an elementary and, at the same time, fundamental factor that legitimises their decisions. Without identifying those reasons, nor without the justifications approved by three parties, the compliance with law cannot fully rely on the respect resulting from it being worthy of respect and the authority of law can only be the authority of coercive sanctions (power). These reasons can be restored (reconstructed) only when adopting a reflective attitude to tradition, especially the tradition of legal culture, understood as a constitutional culture embedded in the public political culture (i.e. the culture of public justifications).

The authors of this article believe that the judgment of CJEU in Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG provides a real chance to undertake a project – widely discussed recently on the basis of the social sciences – concerning self-constitutionalising Europe. This chance can be understood in a narrow sense as an institutional task, engaging the so-called strong public spheres of the EU, i.e. both EU as well as national legal and political institutions. However, in our view, there is also the chance of particular importance, namely the possibility to address the issue of the EU law sources also by general public spheres of the EU. The latter option would create a real legitimacy of the EU law, implying its strong role in integrating European citizens. In other words, the judgment of CJEU is here interpreted as an expression of institutional recognition of the thesis – commonly presented by researchers – about the democratic deficit of the European Union and, at the same time, as an attempt or the initiative to provide – at least institutional – chance of compensating for the said deficit. It merits emphasising, however, that the answer to the question whether that opportunity will also be taken on a large scale depends not only on policy makers and the media, but also ← 40 | 41 → on the citizens themselves, because ‘democratic institutions of freedom disintegrate without the initiatives of a population accustomed to freedom’26.

Our task is to clarify this possibility from the philosophical – legal perspective and to identify its reasons and scope in the sphere of public political culture, with particular reference to the constitutional culture. Changes in a deep institutional and legal dimension indeed require profound cultural changes and their medium may only be a democratic civil space, i.e. critical and reflective attitude of the citizens taking a major challenge to be not only the addressees of law but also its authors. However, in order to meet this ambitious and so far unique task, one needs a special kind of civic education that provides and strengthens moral and democratic, i.e. discursive competence of every citizen of the European Union.

Part II

According to Aulis Aarnio who seeks the answer to the question about our collective identity, namely the identity of contemporary Europeans, the analysed concept has an intrinsic and irremovable problematic nature27. The latter primarily requires understanding which – in the author’s opinion – refers us to the question of our identity in the past. ‘The answer to that question cannot be found in the future, possibly not even in the present, which is in many different ways impenetrable. It plays a large part in the search for identity, coloured with self-comprehension, which take place on the solid building blocks of history, in my case the history of Europe’28.

The search for that which is common in history makes sense and can be fruitful only when we think and believe that it is possible to bridge the gap (whereby there is not always a chasm) between the different (legal) cultures – only or primarily – on the basis of common tradition, for the understanding of which the basic point of reference is, according to Aarnio, the past, i.e. the history of Europe.

Legal culture in terms of the Finnish philosopher of law would undoubtedly constitute a binding element for a shared vision of the normative world in which there would be a ‘hard axiological core’ expressing the abovementioned ← 41 | 42 → self-understanding in the catalogue of the inalienable rights (human rights) as a part of either the text of law, or court rulings and decisions of public authorities, but also the current thinking of the recipients of law participating in this culture, i.e. thinking through the prism of this catalogue. Accordingly, legal culture, understood in such way, implies the specific public culture in which political consensus would stem from axiological and cultural – or in the broader sense – fairly homogenous base, and not only from the procedures so abstract that they comply with the universal laws that form threshold weights for harmonized axiological pluralism and integrate citizens not through cultural socialization, but through the practice of joint constitutionalisation of legal and political reality.

Yet, when holding a discussion on a common legal and political culture of the European citizens one can also take a different view. In our opinion, the answer to the question about a common core of national and European identity may be given only from the perspective of the deepest layers of philosophical self-understanding characteristic of the European culture and its integrative core, namely the legal (constitutional) culture, in other words – from the perspective of the future. Let us not forget that according to Jürgen Habermas who followed the considerations of Max Weber, Western culture owes its highly innovative potential to the active attitude towards the world, whose current form is continually negated29. Moreover, as noted by Mark van Hoecke, despite the fact of choosing a different direction to seek the answers to the question of the European legal culture and the European identity, ‘legal cultures are generally based on a long tradition and even aim at keeping it unchanged for as long as possible. Nevertheless, also in law there are recent cultures that lack such a tradition. This, for example, is the case with European Union law and European Human Rights law’30.

In other words, it is possible to provide the examples of such legal orders of the European Union law (understood as the system of action) which are to such extent considered ‘new legal phenomenon’ that the possibility of a reflective reconstruction of the underlying reasons which legitimize them (the knowledge which belongs to the very legal culture) by means of a reference to the tradition understood as respected history, can be a task so challenging and disputable on the basis of the various cultures of the EU Member States that its implementation will ← 42 | 43 → render vain the noble ideas which guide it, thus leading to undesirable conflicts in the search for common legal culture of the European Union. The reason is that certain modern elements of EU law simply lack tradition.

The second important observation made by van Hoecke is such that we are currently facing ‘the tension (…) rather between old and new ideas than between different traditions’31. What requires understanding, and thus internal reconciliation, is the tension between what is past and covered by a respectable tradition, and what is contemporary and proactive, oriented towards the future which is deeply believed in by both individual people as well as nations in the sense that it will provide them with the possibility of choosing such life which is contemporarily worth the endeavour. The problem that merits reflective thinking is therefore not so much – or perhaps not only – the necessity of finding common elements of ‘a diverse and newly developed’ legal reality, so that due to this common root of the tradition it was possible to trace back the basis legitimizing it and giving it a certain reasonable form, but rather to demonstrate that such a root of justification for newly flowering tree of the EU law can be found and that from the perspective of legitimization, the latter can carry a number of new ideas and legal systems, thus acting as the source of public legal justification. It needs to be emphasised that at this point we do not pose a question – riddle about the most sophisticated justification of a general norm which can provide basis for any lower-level norms but rather about a serious matter, possibly requiring a laborious answer, namely about the issue of reconciling the rule of law within the multicentric – i.e. reflexive legal system – with the government of EU citizens, focused on various public spheres, sadly with the dominating element – from the perspective of the issues related to the legitimacy of EU law – of domestic spheres.

What seems much more fruitful and necessary from the presented perspective is the development, the analysis and discursive construction of the idea of the common future of Europe, its constitutional self-determination, and thus the creation of the legal culture shared by the Europeans by means of an increased civic participation, influencing on the construction of identity, rather than simply by heading towards the past or the legacy that, after all, has been the source of conflicts in the course of the centuries of shared history. We do not have in mind here any reductionist, revisionist, or revolutionary steps. We strongly say NO to 3 Rs. The development of the idea of the common future of Europe, namely the idea that would, after all, guide our construction of the social world, inevitably implies the use of language which is deeply rooted in historically and culturally ← 43 | 44 → defined concepts, in cultural patterns and traditions in the broad sense of this concept. What is more, prospectively oriented development of the idea of a common Europe involves, to some extent, the reference to the past, though perceived not so much as a specific dogmatic authority or a ‘monumental structure’, but rather as the solid material for a critical reflection facing the future.

To our mind, a reflection on the tradition should therefore be perceived from the perspective of the processes of constructing the future as crucial and – in some sense –emancipatory. What proves essential in the context of the analysed issues are the comments made by John Stuart Mill. Though they were presented more than150 years ago, they seem to be still topical like peculiar lodestars.

But it is the privilege and proper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way. (…) The traditions and customs of other people are, to a certain extent, evidence of what their experience has taught them; presumptive evidence, and as such, have a claim to his deference: but, in the first place, their experience may be too narrow; or they may not have interpreted it rightly. Secondly, their interpretation of experience may be correct, but unsuitable to him. (…) Thirdly, though the customs be both good as customs, and suitable to him, yet to conform to custom, merely as custom, does not educate or develope in him any of the qualities which are the distinctive endowment of a human being. The human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice. (…) The mental and moral, like the muscular powers, are improved only by being used. (…) If the grounds of an opinion are not conclusive to the person's own reason, his reason cannot be strengthened, but is likely to be weakened, by his adopting it (…)32.

Mill points to at least three reasons for which a mature man, that is, independently minded man, should reflectively approach the tradition. At the same time, the concept of reflectivity in the quoted essay On Liberty stands for the search for the rationale behind the binding legal or social rules, and – possibly – moral norms in the public space33. In turn, the concept of tradition refers both to certain experience treated as a source of knowledge, as well as to an inherent reflection on them. According to Mill, one cannot speak of tradition as the basis of knowledge about ourselves, if we do not interpret its meaning and the significance of its constituent experience, taking into account the prospect of increasingly different experience, either synchronously or diachronically understood. The interpretation of tradition – significantly based on experience – is thus constantly open to ← 44 | 45 → future processes of its reflective interpretation and critical adaptation. Understood in such a way, tradition that opens up the future undoubtedly deserves respect, as emphasised by Mill.

Therefore, Mill believes that, firstly, “experience [which constitutes the basis of tradition] may be too narrow; or (…) wrongly interpreted”. This finding points to the need for realising the randomness (i.e., the lack of historical necessity) of the experience comprising all traditions. What can be therefore implied is a certain (almost inevitable) possibility of a peculiar one-sidedness and particularity – in other words a limitation in experiencing certain phenomena. In this sense, we can also speak of a certain amount of indelible arbitrariness contained both in the processes of the reflection on history, which are inevitably doomed to limited material, as well as in the processes of constructing collective self-understanding, based on (collective) emotions and on the needs that arise from the random historical constellations. Accordingly, ‘incorrect’ interpretation of the experience that creates the tradition of a certain community may also result from the lack of suitably rich spectrum of experience that constitutes interpretative material (in the sense of the said limited experience), but most of all, the assumption that the relevant spectrum of experience provides a profound and varied interpretive material, points out their improper interpretation.

In turn, incorrect (improper) interpretation of experience that provides the basis for the tradition may represent a number of possibilities on account of intersecting institutional, social and methodological factors. Having in mind the scopes of this essay, it is unfeasible to analyse all of the latter or even more so – to do it thoroughly enough. Therefore, relying on a critical reflection of the readers, we point out – to our mind – most crucial possibilities of improper interpretation of tradition.

A) The bias resulting from the interpretive patterns – widely socialized, so one even say that ‘embedded’ in the society – of the past experiences that at the same time constitute the reflective immutability and stability of the self-understanding and the tradition of a given social and political community. The idea of this essay does not allow us to systematically analyse all possible reasons of this phenomenon, therefore, we will indicate the most obvious ones. The said interpretive bias may be treated as a response to external threats (such as the seizure of the state by its neighbours or terrorist attacks) or to internal threats (such as the illegitimate, or despotic public authorities), and as we know from sociology, the identification of the enemy strongly integrates societies (Simmel-Coser theory). This bias can be also understood as an attempt on the part of the authorities having social or political power to undertake transculturation and in such case the social and institutional power used by them ← 45 | 46 → aims at creating bottom-up mechanisms of authority approval, namely of the engineering implementation of its justification. However, the reverse process can also take place and the bias in interpreting past experiences can function as a mechanism for generating power on the part of those who are at a given moment fighting for (a more extensive) social recognition. In short, the said bias can be both the form of defence as well as of cultural, social or political ‘attack’.

B) The incorrectness or inappropriateness may also result from a narrowed or even low methodological awareness which in order to be constantly developed requires an open access to the independent world of knowledge, i.e. the world of researchers. Any ideological interventions in (normatively) independent scientific world in some way generate conditional results. Political and economic formulas – commonly provided in contemporary times – of practising science are not normatively innocent34.

Nonetheless, the tradition is not shaped merely or even primarily by scientists, but by the citizens. Lancet blade of reflection oriented at the analysed incorrectness is manifested in the questions about the openness and independence of public opinion, freedom of exchange of views by the citizens, ideological independence of the media, ideological circles etc. In other words, what is analysed here are the communication structures that primarily allow flexible and free exchange of ideas on the largest scale possible as well as the opportunity of in-depth, thorough and systematic reflection.

C) ‘Incorrect interpretation’ of the tradition may also stem from the complexity of historical and political experiences of specific communities that are related to the institutional ‘distortion’ of the meaning and the sense of certain experience. After all, fiction may someday prove to be a part of the tradition, just as claiming that something is an element of tradition – respected so highly that no one bothered to question it – may one day turn out to be fiction.

Secondly, Mill notes that while ‘interpretation of experience may be correct [yet it may still prove] unsuitable’ for a certain mature man. What seems to come to the fore here is a specific particularity of experience that is a characteristic feature of the entire experience treated as one’s own experience. This particularity stems from the inevitable limitations of knowledge (in this sense: tradition) based on the random material of experience. The problem concerns mostly methodological and epistemological issues, namely specific limitations – of time or space – encoded ← 46 | 47 → in human cognition as well as the construction of the world correlated with them. After all, there constantly take place social, cultural and political changes which result in the change of the very political community, not just due to the change in its constituent elements, but rather on account of the fact that the next generation has already a different education, knowledge and picture about the world and sometimes even different geographical origin (as a result of migration processes of various scope). Legal and political framework in which they live also significantly influences the process of shaping the awareness of what comprises tradition. Finally, spatial framework of the community may also be subject to changes.

World cognition which always stands for the reflection on the tradition is the more accurate and objective, the more it is based on the communicative inclusive structures of a temporal dimension (as compared to the past, present and future generations that are entitled to voice their opinion, i.e. to undertake their independent interpretation) and a spatial dimension (the voice of others, namely those who are ‘on the other side’ of our subjective experience). The tradition constructed on the basis of such communication (that is, inclusive) structures is regarded – let us once more repeat it – as the tradition that opens up the future.

Thirdly, Mill stresses the importance of critical reflection, aimed at justifying rules and norms for intellectual and moral development of every human being, which is of utmost importance here and thus influences the concept of the very tradition. A mechanically repeated custom ceases to have the character of a custom of major importance because its symbolic embedment disappears and becomes a mere convention which can be without any inhibition rejected at any time by anyone who finds that it is ineffective or it prevents the effective implementation of other meaningful or significant social tasks. Reflectively preserved customs, namely those for which the modern rationalized world is looking for momentous reasons and a justification for their continuation and those which allow the possibility of conscious modification (special non-random adjustments) may, contrary to popular fears, strengthen the tradition and its awareness in a given group.

In other words, reflective attitude towards tradition may even revive the collective consciousness of a given group and focus on the common search for the justifications of certain practices – acceptable by all members of a particular group. The search for those justifications that would be approved by all members of a given group and, additionally, would be opened in time and space to the reasons of others is somehow perceived as a filtering process which provides a critical analysis of at least three types of beliefs. The first type comprises the moral beliefs of a definitional and universalist character of claims (related to the moral, ← 47 | 48 → i.e. normative self-determination of a given community). The second group involves ethical beliefs, crucial for the self-understanding (self-realisation) of a given group and a common answer to the question of an authentic way of life. Finally, the third type comprises customs, construed as numerous yet scattered ways to coordinate daily activities which, although they themselves are not particularly profound, their rational harnessing is of utmost importance, since due to the latter the world is perceived by the people as understood, well-known and predictable, what allows them to rationally plan their actions in this world, thereby effecting their numerous interests.

It appears, therefore, that according to Mill, a reflection on the tradition is an important contribution to develop one’s critical reflective attitude towards the surrounding reality and to search for the possible justifications of its specific form and character. Such critical – reflective attitude to seek justifications for rules and norms which we should comply with, allows to differentiate between the various types of claims (moral, ethical, pragmatic) which are made by us or by the society, and on this basis only – to approve or reject them. Mill thus indicates the basic elements of moral and democratic competence, namely an active attitude towards the present reality, where the concept of activity stands primarily for a critical exploration, understanding and providing justifications which constitute the basis for an approval (or lack thereof) for different types of claims that differ from each other both in their scope and validity, as well as in their implied argumentative openness, namely both to claims to validity, made by others, their unencumbered articulation, as well as the cooperative construction of a common world where every person has an equivalent voice.

Mill’s vision of a ‘mature man’ seems to largely meet the contemporary requirements imposed by democratic societies on its citizens who need to develop their moral and democratic competence as long as they want to live autonomously. Due to them the reflection on the tradition may become an actual incentive to reflectively form social solidarity in favour of universal and harmonized pluralistic particular claims as well as universally recognized individual claims.

Part III

It should be therefore noted that only targeting towards the future in which the world can be our joint product, continuously released from the existing inherent limitations, would allow to cooperatively develop such understanding of our past, that it would be manifested in such categories which have always reinforced the possibilities of our existence in the social milieu. As noted by John MacCormick, the specific nature of Europe has always been a peculiar type of multiculturalism, ← 48 | 49 → though perhaps not the one that is widely discussed at present times, but rather the one related to ‘a Europeanist habit of integrating core values and features from almost every new group with which its dominant cultures have come into contact’35. In modern times it gave rise to a typically cosmopolitan European conviction that local or regional problems, such as those relating to Europe or the European Union, cannot be validly dealt with in complete isolation from the claims made by the states, institutions or international organizations in the context of the issues absorbing the rest of the world, for example those connected with the processes of globalization36.

At this point there arises the question concerning the relationship between the release of the sources of the European Union law by the Court of Justice of the EU and the cosmopolitan attitude of the European culture touched upon by MacCormick. The answer to this question can be given from the perspective of the deepest philosophical layers of self-understanding, characteristic of the European culture. To this end, let us return to the ‘core’ problem of exploring the common elements in the legal and political European culture. We therefore face the following problem: Do we decide to search for a substantive determination of common pre-sources of legal culture in the past, taking the archival effort to find common European legal contracts, cultural or political events or international institutions? Or do we find this element only in the future, what has according to the EU Treaties already formed the basis of the European integration. The latter would be achieved by undertaking the task on the general cultural level, namely on the level of ‘existential construction’ corresponding to the question posed by Aarnio, i.e. ‘Who are we, the Europeans?’, or in other words ‘political legal construction’ of our truly common legal culture.

The strategy outlined by the reasoning presented in this essay may seem to be uncertain. After all, one can notice that if we were to undertake the latter task, i.e. political and legal construction of our common public legal culture, wouldn’t we fall into ideologically permeated justification of the goals set on the basis of ad hoc policies pursued by international or pan-European institutions or intergovernmental agreements? Wouldn’t we then justify the goals ‘imposed from the above’, i.e. emerging from the discussions of political and economic elites, and ← 49 | 50 → thus satisfy the will not so much of the Europeans but the mighty of the world37? What proves to indicate the contrary trend is the direction of the legitimisation processes implied by the abovementioned decision of the Court of Justice of the EU38. This decision seems to satisfy the requirements of modern democratic societies, which, above all, submit legal and political justifications to the public debate39.

The concept of political and legal construction of the common legal culture presupposes the application of the idea of deliberative democracy, which is, in turn, based on the application of the issues related to democratic societies of discourse theory that, having as its basis the underlying concept of Habermas’ autonomy40, in some way forces the public debate on the arguments providing possible justification of legal solutions of the EU legal system. In other words, the essence of the strategy of legitimising the EU law, as presented in this essay, is neither arbitrariness nor randomness of its perception, nor ideologically permeated adaptation of legal justifications to political objectives or to collective interests of the Member States of the European Union. On the contrary, the essence of the matter is to release (Abhebung) to the level of public and institutional consciousness (i.e., rational in the analysed perspective) the need to incite the cooperative powers to create communicative justifications for the most basic principles of the European coexistence.

We therefore believe that the main problem here concerns a simultaneous stimulation of two dimensions: on the one hand, the institutional orders related with the establishment of the EU law and the law in the Member States and the orders relating to the application of law inherently connected with its rational justification, i.e. with the level of national judiciary that forms the core of the idea of ← 50 | 51 → the harmonization of EU law. On the other hand, it is important to give an inducement to debates in public spheres, both national and pan-European ones, on the basis of which the existing legal cultures and the justifications of (national) legal order embedded in the latter could be subject to the reflection of the EU citizens.

When clarifying the position on the decision made by the Court of Justice of the EU, it can be even noted that the latter satisfies the requirement of searching for legitimate reasons of the legal system on the part of the citizens being both authors and recipients of the said law. There is nevertheless something more to this, when we pay attention to the thesis made by Mattias Kumm under which ‘competing methodological accounts of how courts should interpret constitutions are grounded in competing conceptions of the role of institutions charged with enforcing the constitution. In this sense, questions of legal methodology are questions of institutional design or questions concerning the interpretation of an institutional role. Debates on legal methodology are typically debates about what courts should do. They are closely connected to arguments about the appropriate function of courts in their relationship to other actors within a particular scheme of institutional division of labour41.

According to this idea, methodological issues of law, including undoubtedly the analysed decision of the Court of Justice of the EU also apply to the vision of the institutional role of the courts and judges in the perspective of their relation to other institutional actors in the legal system, or even to the role of the courts and judges understood in a broader perspective of political and legal culture, as proposed by the conception of Marek Zirk-Sadowski42.

From the jurisprudential perspective of the latter author, the analysed decision can be rightly interpreted as recognising the community of judges as one of the communities that co-create legal and political culture and on that basis it can be assumed that it opens the discussion on the pre-sources of the EU law for other communities, namely for the national courts as well as for the national and EU strong public spheres. It is feasible, provided that this idea is further ‘picked up’ (i.e., it gains recognition) by different institutions operating in the chain of the legal system, taking into account ‘an institutional pattern of the division of labour’ associated with certain moments of making or enforcing law. ← 51 | 52 →

Understanding the significance of recognising the community of judges as only one of the communities that interpret law – as expressed in the analysed decision of the Court of Justice of the EU – constitutes an important step towards implementing the vision of self-constitutionalisation of Europe, based on the idea of constitutional patriotism, as presented by Habermas43. The development of this conception whose sources can be discerned already in Between Facts and Norms (or even a bit earlier), where the abovementioned redefinition of Kant’s concept of autonomy has taken place, has led Habermas to take a position on the basis of which it is possible to construct the European political community44 based on reasonable public justifications of its political and legal, and thus moral framework.

In order to create such a public legal culture it is crucial to ensure the processes of reasonable formulation of public justifications for normative claims that are to bind all of us. Provided the processes of formulating public justifications are undertaken both by the strong public spheres, as well as by weak public spheres, namely by spontaneously organized EU citizens, they will form the basis of criticising moral and ethical convictions of all (i.e. coming from the EU Member States) authors and addresses of EU law, so that the final result will be such law, namely such an interpretation of the sources of EU law, that can be regarded as a common cooperative product of all EU citizens.

It is only due to the analysed process or, possibly, even to the entire sequence of processes that a highly criticized superficiality of the idea of EU citizenship45 – on account of founding it on the concept of the citizenship of the EU Member State – can be transformed into a significant concept, key to determining the identity of the Europeans. The concept of EU citizenship will gain real meaning only when ← 52 | 53 → the said European identity, and therefore the sources of the legitimacy of the legal system of the EU law, are actually ‘communitaurised’, namely commonly and discursively established in the processes of cooperative interpretation of public political and legal culture, open to thorough critical (emancipatory) reflection on individual particularistic traditions and a common future whose source has already indicated its presence in these traditions.

Conclusion

The analysed issue of the decision of the Court of Justice of the EU is not detached from the observations made by the English philosopher whose views have been touched upon in the heart of this essay. On the one hand, the release of the pre-sources of the interpretation of EU law can be perceived as the symbol that one of the most important institutions of the EU legal system recognised the community of judges as one of the many communities interpreting the EU law and invited other communities and citizens to co-operative discourse, which in fact concerns our European identity, thus complying with the self-constitution of the European Union. On the other hand, this decision expresses the appreciation – being a peculiar constraint of rationality – that we, Europeans are ‘mature people’ who have already developed or recognized the inevitable need to develop moral and democratic competencies aimed at public formulation of the justification of our claims, or meta-competences of differentiating and qualifying these claims, which proves necessary in the process of justifying the extent of their validity. The problem in fact relates to the recognition of moral and democratic competencies that enable our autocratic and reflective attitude in the context of a common European order of justice. ← 53 | 54 →


1 The following text was prepared by Bartosz Wojciechowski as a part of a research grant financed by National Science Center (Poland), No. DEC-2012/05/B/HS5/01111.

2 The issue of the ambiguity of the hierarchy of EU sources of law has been recently pointed out, among others, by A. Całus in the article “Hierarchia w prawie Unii Europejskiej” [Hierarchy in European Union Law], in: Współczesne wyzwania europejskiej przestrzeni prawnej. Księga pamiątkowa dla uczczenia 70. urodzin Profesora Eugeniusza Piątka [Modern Challenges of the European Legal Space. Memorial Book to Commemorate the 70th Anniversary of the Birthday of Professor Eugeniusz Piątek], A. Łazowski, R. Ostrihansky (eds.), Kraków, 2005, pp. 47–56.

3 G. Falkner, M. Hartlapp, S. Leiber, O. Treib, Democracy, Social Dialogue and Citizenship in the European Multi – Level System, paper for the 1st Pan-European Conference on European Union Politics, Bordeaux 26 – 28 September 2002, http://www.mpi-fg-koeln.mpg.de/socialeurope/downloads/BordeuxCitizenship.pdf; W. Kerber, “An International Multi – Level System of Competition Laws: Federalism in Antitrust”, German Working Papers in Law and Economics, 2003, no 1. The term ‘multicentricity of the legal system’ was coined by E. Łętowska, “Multicentryczność współczesnego systemu prawa i jej konsekwencje” [Multicentricity of Modern System of Law and its Consequences], Państwo i Prawo [State and Law], 2005, no 4, pp. 3 – 10; idem, “Między Scyllą a Charybdą – sędzia polski między Strasburgiem i Luksemburgiem” [Between Skylla and Charybdis – Polish Judge between Strasbourg and Luxembourg] Europejski Przegląd Sądowy [European Judicial Review] 2005, no 1, pp. 3 – 10. As the author notes, the Polish accession to the European Union caused a different perception of the participation of citizens and public authorities in the legal culture, what is directly manifested in the fact that corpus iuris polonicum became genetically heterogeneous, as it includes the system of national law and acquis communautaire.

4 See, inter alia, M. Kerchove van de, F. Ost, Legal System. Between Order and Disorder, London 1994, passim; R. Voigt, „Globalisierung des Rechts, Entsteht eine ‚dritte Rechtsordnung‘?“, in: R. Voigt (ed.), Globalisierung des Rechts, , Baden – Baden 1999, p. 13ff.; W. Cyrul, B. Brożek, “Globalny system prawa” [Global System of Law] Studia z filozofii prawa [The Studies in the Philosophy of Law], (ed.) J. Stelmach, Kraków 2003, vol. 2, pp. 94 – 109. The global system is understood as a pluralistic conception of law, in which several legal systems coexist at the same time. Pluralistic conception of law was touched upon by Neil MacCormick in Questioning Sovereignty. Law, State, and Nation in the European Commonwealth, Oxford University Press, New York 2001, p. 94, p. 115.

5 The scope of this essay is too modest to thoroughly analyse this important, yet extensive issue. Consequently, we will narrow down our discussion only to a few – as we believe – most important comments. We would like to note that the multicentricity of the legal system is manifested in at least three areas: the creation of law, legal validity and law application.

6 The concept used by M. Safjan during the Conference „Pozycja sądów konstytucyjnych w następstwie integracji z UE” [“Position of Constitutional Courts Following Integration with the EU”] Bled – Slovenia 30 September – 2 October 2004, quoted after P. Mikłaszewicz, “Pozycja sądów konstytucyjnych w następstwie integracji z Unią Europejską (Konferencja w Bledzie – Słowenia 30 IX – 2 X 2004)”, Państwo i Prawo [State and Law], 2005, no 3, p. 120. See also A. Kustra, “Wokół problemu multicentrycznosci systemu prawa” [The Issue of the Multicentricity of the Legal System], Państwo i Prawo, 2006, no 7, p. 87ff.

7 W. Lang, “Wokół problemu ‘multicentryczności systemu prawa’” [“The Issue of the “Multicentricity of the Legal System’”], Państwo i Prawo, 2005, no 7, p. 95.

8 In the literature the hierarchy is presented in the form of an ordering relation, while the nature of the relations is one of superiority and equivalence. See K. Płeszka Hierarchia w systemie prawa [Hierarchy in the Legal System], Kraków 1986, chapter 4.

9 M. Kerchove van de, F. Ost, Legal System…, op. cit., p. 69. F. Ost believes that a looped hierarchy can be regarded as an interaction between levels in which the relationships occur in all directions, namely the highest level is directed back to the lower level, affecting the latter, and yet it is at the same time determined by the lowest level.

10 Wojciech Cyrul, Bartosz Brożek, Globalny system prawa [Global System of Law], op. cit., p. 103.

11 Compare Karolina M. Cern, The Counterfactual Yardstick. Normativity, Self-Constitutionalisation and the Public Sphere, Peter Lang Edition, Frankfurt am Main, 2014, Chapter II. 1.

12 See more on that issue: M. Zirk-Sadowski, “Interpretation of law and judges communities”, International Journal for the Semiotics of Law, 2012, Volume 25, No. 4.

13 W. Lang, Wokół problemu …, op. cit., p. 97; A. Kustra, Wokół problemu …, op. cit., p. 91.

14 E. Łętowska, Multicentryczność współczesnego systemu prawa …, op. cit., p. 6ff.

15 A. Wróbel, „Globalna wspólnota sądów?” [ The Global Community of Courts?], Europejski Przegląd Sądowy [European Judicial Review], 2006, no. 3, p. 1.

16 See, inter alia, A. Kroeber, C. Kluckhohn, “Culture: A Critical Review of Concepts and Definitions”, Harvard University Peabody Museum of American Archaeology and Ethnology Papers, 1952, vol. 47, no. 1; C. Jenks, Kultura [Culture], Warszawa 1999, p. 19ff.; A. Kłoskowska, Kultura [Culture] in: Encyklopedia Socjologii [Encyclopaedia of Sociology] vol. 2, Warszawa 1999, p. 100.

17 M. Borucka-Arctowa, “Kultura prawna na tle myśli filozoficznej i społecznej o kulturze” [Legal Culture in the Context of Philosophical and Social Thought about the Culture], Studia Prawnicze [Legal Studies] 2002, No. 1, p. 14. In turn, Roman Tokarczyk presents the following view on the distinction of legal culture: ‘Each of the known units of law – norm, institution, branch, system, family, tradition, type, culture – contains the elements of culture and it stems from culture. (…) Some units of law demonstrate this content in cultural retrospectives (e.g., family, tradition, type), and others – in cultural perspectives (e.g. norm, institution, branch, system). The category of legal culture combines both these perspectives, placing law among other components of culture (…).’ Idem, Współczesne kultury prawne [Contemporary Legal Cultures], Warszawa 2008, p. 87.

18 J.-W. Müller, “A European Constitutional Patriotism? The Case Restated”, European Law Journal, 2008, Vol. 14, No 5, pp. 542–557; here p. 548.

19 Consolidated Version of the Treaty on European Union (OJ EU C 83, of 30 March 2010).

20 See: the Opinion of Advocate General – Miguel P. Maduro delivered on 8 October 2008 in Case C 213/07, Michaniki, ECR 2008, I-9999, 31–33.

21 Cf. J.- H. Reestman, “The Franco-German Constitutional Divide. Reflections on National and Constitutional Identity”, European Constitutional Law Review, 2009, no 5, p. 376.

22 Interesting analyses of the of the idea of importance of some (chosen) CJEU’s rulings deliver Mattias Derlén and Johan Lindholm in “Good bye van Gen en Loos, Hello Bosman? Using Network Analysis to Measure the Importance of Individual CJEU Judgements”, European Law Review, Vol. 20, No. 5, September 2014 (pp. 667–687).

23 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (EC OJ L 303 of 27 November 2000, p. 16) adopted on the basis of the previous article 13 of the Treaty establishing the European Community, which in paragraph one established the legal basis for adopting by the EU Council ‘appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.

24 Point 21 of the judgment in Kücükdeveci case.

25 On the subject of threshold weights and the concept of political morality see: Karolina M. Cern, Jürgena Habermasa koncepcja sfery publicznej – komunikacyjne kształtowanie opinii oraz woli obywateli, czyli idea samokonstytucjonalizacji [Jürgen Habermas’ Concept of the Public Sphere – Communicative Opinion- and Will-formation of Citizens, i.e. the Idea of Self-Constitutionalisation], in: P. Orlik, K. Przybyszewski (eds.), Aktualność filozofii [Topicality of Philosophy], Wydawnictwo Naukowe Instytutu Filozofii UAM, Poznań 2012.

26 Habermas Jürgen, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, p. 130.

27 A. Aarnio, “Who are we? On Social, Cultural and Legal Identity”, in: (eds.) T. Gizbert-Studnicki, J. Stelmach, Law and Legal Cultures in the 21st Century. Diversity and Unity, Warszawa, 2007, p. 134.

28 Ibidem, p. 146.

29 Jürgen Habermas, The Theory of Communicative Action, Volume I, Reason and the Rationalization of Society, trans. By Thomas McCarthy, Beacon Press, Boston 1984, pp. 186–215.

30 Mark Van Hoecke, “European Legal Cultures in a Context of Globalization”, in: T. Gizbert-Studnicki, J. Stelmach (eds.), Law and Legal Cultures in the 21st Century. Diversity and Unity, Warszawa, 2007, p. 83.

31 Ibidem, p. 95.

32 John Stuart Mill, On Liberty, available at http://www.bartleby.com/130/ [20–01–2015; 16:26].

33 Ibidem, Chapter II.

34 Johan P. Olsen, Governing Through Institution Building. Institutional Theory and Recent European Experiments in Democratic Organization, Oxford University Press 2010, p. 168, p. 192.

35 John MacCormick, Europeanism, Oxford – New York 2010, pp. 169–170; see also Patrizia Nanz, Europolis. Constitutional patriotism beyond the nation-state, Manchester University Press, Manchester and New York 2006, p. 52.

36 J. MacCormick, Europeanism, op. cit., p. 66.

37 Jiři Přibáň, “Multiple Sovereignty: On Europe’s Self-Constitutionalization and Legal Self-Reference, Ratio Juris, Vol. 23 No. 1, March 2010 (pp. 41–64), p. 48. Cf. also: J. MacCormick, Europeanism, Oxford 2010, p. 4.

38 On the initiating (and contributing in) the constitutional dialog by the CJEU compare Mark Dawson, “How Does the European Court of Justice Reason? A review Essay on the Legal Reasoning of the European Court of Justice”, European Law Journal, Vol. 20, No. 3, May 2014 (pp. 423–435); especially pp. 428–430.

39 Karolina M. Cern, Piotr W. Juchacz, Bartosz Wojciechowski, “Whose Reason or Reasons Speak Through the Constitution? Introduction to the Problematics”, International Journal for the Semiotics of Law, Vol. 25, No. 4, 2012 (pp. 455–463).

40 On this topic see: Karolina M. Cern, Bartosz Wojciechowski, “Postmetaphysical approach to moral autonomy and justification of the thesis of the necessary relations between the legal and moral discourse”, in: Bartosz Wojciechowski, Piotr W. Juchacz, Karolina M. Cern (eds.), Legal Rules, Moral Norms and Democratic Principles, Peter Lang Verlag, Frankfurt am Main, 2013.

Details

Pages
210
ISBN (PDF)
9783653054767
ISBN (ePUB)
9783653972405
ISBN (MOBI)
9783653972399
ISBN (Book)
9783631659915
Language
English
Publication date
2016 (February)
Published
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2016. 210 pp.

Biographical notes

Roman Hauser (Volume editor) Marek Zirk-Sadowski (Volume editor) Bartosz Wojciechowski (Volume editor)

Roman Hauser is a Professor of Administrative Procedure at Adam Mickiewicz University (Poland) and the President of the Polish Supreme Administrative Court. Marek Zirk-Sadowski is a Professor of Theory and Philosophy of Law at the University of Łódź (Poland) and the Vice-president of the Polish Supreme Administrative Court. Bartosz Wojciechowski is an Associate Professor at the Faculty of Law at the University of Łódź (Poland) and a judge at the Supreme Administrative Court.

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Title: The Common European Constitutional Culture