Inexplicable law: legality's adventure in Europe. (Symposium: Comparative Constitutional Law at University of Iowa College of Law)

I. KNOWING WHAT THE LAW IS

The rule of law has its own way of celebrating its marvels. The usual euphemism has it that in systems governed by the rule of law, the law emerges from a process of conversation. (1) As most trained lawyers know, conversations that are generative of law could go on forever. To every legal argument there is a conceivable counter-argument. Legal conversations could be conducted indefinitely--with infinitesimally growing nuance and erudition, of course.

But every legal conversation needs to come to an end; otherwise the law would fail to regulate. At one point, the discussion over what is right or wrong needs to be cut off. Such a cut off point is called a "decision." The law can be known only through decisions. This is what makes the law into the social sphere where the will has an objective reality. (2)

Luhmann was keenly aware that decisions are disturbingly paradoxical. (3) Decisions implicitly claim, in a legal context, to apply or implement something that was to be known in advance and that, could it have been known in advance, would have made the act of decision unnecessary. In other words, that the law can be known only through decisions is tantamount to saying that it can be known only by submerging the worrisome awareness that it cannot be known at all.

The paradox is omnipresent. It is, indeed, aggravated by the fact that--conventional standards regarding jurisdiction and finality aside--the modern legal system does not honor decisions independent of their rational pedigree. In other words, the legal system does not locate the authority of the termination of a legal dispute in the substance of its result, the decision proper. The explanation is simple. The substance of the decision can only be appreciated with resort to the bundle of arguments and counter-arguments underlying its generation. (4) Consequently, the moment a decision becomes intellectually appropriated in a subsequent application, the decision is again decomposed into the controversy from which it initially arose, or even gives rise to another. Official fidelity to statutory language and stare decisis notwithstanding, it is plain that the reasons used to elaborate the wording of the statute or the arguments adduced to elucidate the actual holding of a case are precisely what make sources authoritative in the context of legal justification.

Reasons cannot control the future. (5) Rather, the future determines the reasons that will actually be deemed to have been persuasive. Reasons look plausible from one decision to the next. Hence, what a decision in one case implies for the next is bound to remain an open question. (6) Any blind adherence to the words of a statute or the rule established in a case would seem to countenance pure "decisionism." (7) Consequently, legal controversy can never come to a conclusion. It is resuscitated in every appeal to legal authority--be it a statute or a precedent--as if the decisions handed down by judicial bodies were merely the by-products necessary to continue the controversy.

Only a small intellectual step is needed to appreciate fully the dialectical momentum that originates from the process of conversation. Every decision, by favoring one side over the other, sacrifices the wealth and richness of discourse. The sacrifice is necessary, however, for without it there would be no way for continuing the indefinite chain. But no decision can ever be as insightful and complex as the discussion preceding and following its adoption. Consequently, it becomes increasingly difficult to accept the idea that parties, at some point, need to succumb to a decision without further appeal. (8)

At the same time, there is little reason to be excited about appeals once it has become clear that--the correction of flawed factual determinations aside--no decision can be much better than any other. No decision can live up to the erudition that can be sustained only on the level of the conversation. The very concept of a misapprehension of law is cast into doubt if it is generally understood that truncation and distortion are the sacrifices necessary to ensure the reproduction of law from one case to the next or even from the one interpretation of a statutory provision to another. Just as there are no reasons for a legal argument to come to an end, there are also no reasons to carry a legal argument on indefinitely. The process is always intellectually more resourceful than the result, but a result is what parties seek to obtain from it. The law cannot be known if what is meant by "known" is that the meaning of the law is being pinned down in, or condensed to, a decision.

II. KNOWING EUROPEAN COMMUNITY LAW

In what follows, I would like to explore the trace that this dialectical moment has left in a legal system that deserves particular praise for the manifold paradoxical complexities that it has to offer to its students. (9) What I have in mind here is, of course, European Community law. In our context, it is interesting for at least two reasons.

First, European Community law self-consciously acknowledges its own indeterminacy. This is ostensibly the case not only as regards the provision of a special "preliminary reference procedure," in the course of which a Member State's court may or must ask the European Court of Justice (ECJ) to supply an authoritative interpretation. (10) The indeterminacy also becomes evident in the cases that are of relevance here; namely instances when states might be held liable for a breach of Community law. (11) For such liability to arise it is necessary, among other things, that the breach be "sufficiently serious." (12) According to established Court practice, this is not the case where European Community law has not been sufficiently clear. (13)

Second, as will be more fully explored below, European Community law may already be underway to privatize the final determination of the law. Put bluntly, expounding the meaning of law may have already become a matter of adjudicating tort claims. (14) Their success seems to depend, essentially, on whether the law's lack of clarity was clear enough so that it could have been recognized by any reasonable judicial tribunal. Whether the solution that the ECJ has found for this problem may be regarded--necessarily, I add tongue in cheek--as an open question.

The heart of the matter is, of course, how a supranational legal system ought to reply to misapprehension by its addressees. As regards the Member States, Community law appears to have a straightforward response. If Member States, and in particular a national legislature, could and should have known Community law because, for example, the law has been clear, then they incur a civil liability for damages suffered by parties whose interests have been adversely affected as a result of a misapprehension of Community law. However, recently the question seems to have been given a more intriguing twist. (15) The ECJ had to address the issue of whether Member State courts can be responsible for mistakenly assuming that Community law is clear when it should have occurred to them that, on the contrary, the law is unclear and therefore in need of clarification by the ECJ. (16) The Court in Kobler had to deal in an appropriate way with a rejection of its supreme interpretative authority. (17) It is needless to add that the assumption of interpretative authority is presumptuous in itself for cases where the law is supposedly, contrary to its appearance, unclear. What should be left for the ECJ to clarify?

As will be shown below, the ECJ's daring foray into hitherto uncharted waters left European Community law shipwrecked amidst the sea of legal paradox. (18) The rule that the ECJ introduced to assert its authority is necessarily self-effacing in its application. In a sense, the Court set a precedent that nullifies itself.

I will begin by reminding the reader of how important the cooperative partnership is between the ECJ on the one hand and national courts on the other for the implementation of the Community's legal system. I am then turning to different modes of dealing with bad court decisions against which there is no further appeal. After a short sketch of the ECJ's jurisprudence on state liability I will offer a reconstruction of how the Court dealt with instances of purported misinterpretation by a Member State court deciding at last instance. It will be seen that the Court's precedent, even though firm in principle, is necessarily self-effacing in practice.

III. INTERPRETATIVE AUTHORITY

The Member States of the European Union are responsible for implementing and respecting Community law. (19) If they fail to do so either the Commission will go after them (20) or the Member State's conflicting laws will be set aside. Such setting aside requires the good will of trustworthy partners, in particular the national judges, given that the Community does not have its own and separate system of "federal" courts. Indeed, the success of European integration, from a legal point of view, has depended vitally on the cooperation between the ECJ and national courts, which played their part not merely in referring questions of interpretation to the high tribunal in Luxembourg, but also in effectively "setting aside" national law that was deemed to be in conflict with Community law. (21) Given that national courts have connived in undermining national sovereignty through "dis-applying" their own national laws, one would be surprised to see the ECJ confront its longstanding partners by also holding them responsible for a breach of Community law--as though they were on a plane with sluggish or unwilling national legislatures and recalcitrant administrators. (22)

Arguably, the ECJ needs to take heed of rejection. (23) Its authority to explain what the law is, even where there is no law to explain, must not be challenged by national courts that believe they know better or best. How is the ECJ to act when it is presented with a case in which it is alleged, among other things, that a court did not refer the matter even though it should have done so? I add that the difficulty is compounded by the fact mentioned above that only courts deciding the matter at last instance are under an obligation to refer to the High Tribunal in Luxembourg. (24) This raises a difficult question. Decisions by courts of final appeal are, by their very nature, not susceptible to appeal. Cases decided by courts at last instance are final. Nevertheless, it is these same courts that are under an obligation to refer. But until recently a violation of such an obligation could not have been successfully revealed by an appellant before another court. Has it, thus, been treated as an obligation at all? (25) Not, certainly, vis-a-vis European citizens; (26) if at all, it has been a legal duty that is owed to the Community, which could have enforced it at any time by bringing an action against a defaulting Member State. Via this avenue, Member States could be held responsible for the conduct of their highest courts. As a matter of constitutional convention, however, the Commission has abstained from taking that step. More precisely, the Commission, even while bringing action against administrative practice condoned by national courts, (27) has so far never reacted to an act of a court of final appeal by bringing action against the Member State. (28)

If, therefore, owing to a reasonable constitutional convention, there is no recourse against the failure of a court of last instance to refer, then one could conclude that there is no real obligation to refer. Such a conclusion, putting it mildly, is in tension with the wording of Article 234. (29) In fact, the only avenue available to have the matter decided by the ECJ is a reference against a final decision originating in another, lower, national court. But how could that ever be the case? The decision by a court at last instance is final.

IV. THE PUBLIC STRATEGY AND THE STRATEGY OF PRIVATIZATION

The law governs its own creation. (30) More generally, it reflects upon, and is responsive to, its own operation in legal terms. Some of the pertinent standards regulate the imposition of sanctions for the creation of bad law. One such sanction is nullity, or rather, the declaration of the nullity of a legal act. The act is then held to be so flawed as to be legally nonexistent. A final decision may be final but at the same time so repugnant that it must be denied the force of law. Arguably, it can then only seemingly be final while in fact its nullity is being determined in another legal act. (31)

Typically, a refusal to enforce is the reaction of public authority to bad legal decisions. Contracts, for example, when reflecting grave inequalities of bargaining power, are declared null and void because public authority refuses to uphold a dirty deal. In a word, nullity is the major means of sanctioning the creation of bad law. Conceivably, declarations of nullity are also the typical public law response to egregious errors by courts of final appeal. Speaking of such a response I do not entertain a mere hypothetical possibility. In dramatic …