EU Law, Fundamental Rights and National Democracy

Eduardo Gill-Pedro

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351176330
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The orthodox view is that rights complement democracy. This book critically examines this view in the context of EU fundamental rights, specifically in situations where EU law requires member states to respect EU fundamental rights. It first sets out a legal theoretical account of how human rights can complement democracy. It argues that they can do so only if they are understood as both the conditions for the democratic process, and the outcome of such a democratic process. In light of this legal theoretical account of human rights, this book examines the demands which the Court of Justice of the EU (CJEU) imposes on the national orders in respect of EU fundamental rights. The conclusion reached is that the demands which EU fundamental rights impose on national legal orders entail a cost for the democratic legitimacy of those legal orders. Ultimately, accepting the demands of the CJEU in respect of EU fundamental rights may require the national legal order to abandon its commitment to protecting the human rights which are the foundation of the national legal order's very legitimacy.

1 Introduction

Fundamental rights are, and have been for some time, a central part of the legal order of the European Union (EU).¹ Respect for fundamental rights is stated to be one of the foundational values of the EU,² the EU now has a legally binding Charter of Fundamental Rights which is hailed as inaugurating a new phase of European integration,³ and leads some to state that the EU “unquestionably now has a constitutional framework that includes human rights protection”.⁴ The protection and promotion of fundamental rights occupies a significant place in EU law and policy and has “come to represent an important part of the ‘normative power’ … which the EU seeks to promote”.⁵

A central actor, perhaps the central actor, in this development is the Court of Justice of the EU (CJEU). It was the CJEU which first held⁶ that fundamental rights were part of EEC law, despite there being no mention of them in the Treaty Establishing the European Economic Community. The CJEU’s fundamental rights jurisprudence is claimed to have been central in enabling the CJEU to “ensure the coherence and autonomy of the EU legal system”.⁷ Decisions by the CJEU concerning to scope of application of the Charter are claimed to determine the character and features of the entire legal order of the European Union.⁸

These developments have led commentators to assert that the EU has “come of age as a human rights actor”⁹ and that the CJEU has been presented as “a serious contender […] as the prime pan-European human rights authority”,¹⁰ upholding EU fundamental rights of nearly half a billion people.¹¹

These EU fundamental rights have been relied on to legitimate the exercise, by the EU, of its competences in an increasing wide range of sensitive areas. They have been used to justify the demands which the EU places on member states and, in turn, the demands that the member states are required to impose on those in their jurisdiction. It is wise to heed Koskeniemmi’s words, who points out that:

human rights vocabularies are instruments of power and […] there is no end to the purposes to which they may be put.¹²

But that power is not the power of a gun – it coerces us not through brute force, but by making claims about who we are and with whom we are connected.¹³ If we are to take those rights seriously, we have to be attentive to what those claims entail – what relationships are we acknowledging as ours when we recognise those rights?

What this book is about

In this book, I explore one key question: what are the implications for the democratic legitimacy of the member states’ legal orders, of being required to comply with fundamental rights whose meaning is determined by the CJEU?

This question will be addressed in two stages, which are set out in the two parts of this book. Part I will explore the claims of legitimacy which the legal orders of the member states make, as well as the relationship between those claims of legitimacy and the claim to protect human rights within those national legal orders. Part II will explore the demands which EU fundamental rights make on the national legal orders, and how such demands may impact on the claim of legitimacy of those member states’ legal orders.

This book concerns EU law, but the question addressed relates to the impact of a specific aspect of EU law on the legitimacy of the member states legal orders. This will therefore necessitate adopting two alternating perspectives. In Part I the perspective will be the member states internal perspective, examining the relationship between the member states legal orders, which claim democratic legitimacy over those who are under that state’s jurisdiction, and over whom that legitimacy is claimed.

The law that constitutes the object of study in Part I is the law of the legal orders of the member states. This presupposes that we can talk about ‘the legal orders of the member states’ in a meaningful sense, rather than 28 separate legal orders. This does not mean that the member states national legal orders comprise one legal order, but it does mean that there are sufficient commonalities between the legal orders of the member states that will enable this study to consider the impact on them together. I presuppose, in effect, that the law of the 28 member states are different instances of that specific type of law. Chapter 4 will elaborate the way in which the commonalities between the different legal orders are sustained, but at this stage it is necessary to point out that I will explore aspects of the legal orders of the member states conceived as representing one object of study.

By contrast, the second part requires an assessment of the demands which EU law places on the member states. So the perspective here will be the EU’s internal perspective, and the relationship between the EU, and the member states’ legal orders, on whom EU law imposes its demands.

Further, in this second part, the law that will constitute the object of study will be the law of the EU, as elaborated by the Court of Justice of the EU (CJEU). This entails an understanding of EU law as phenomenon that can be studied as something distinct from the law of the member states, and conversely, that the law of the member states as states can also be studied as something distinct from the demands imposed by EU law.

Part I – the legitimacy of national law

Part I will set out the understanding of democratic legitimacy which will be relied on as the standard of critique of EU fundamental rights in Part II. There is a reciprocal relationship between the claim of legitimacy¹⁴ and the coercive nature of law. Because the legal order is legitimate, it has the right to enforce its laws by coercion. On the other hand, it is because law coerces its addresses that it requires legitimation. When the law claims that we have a duty to comply with it,¹⁵ then such a duty can only be conceived as a moral duty,¹⁶ and not merely as the demands of a gangster,¹⁷ if the law makes a further claim that it is legitimate. So the requirement that law make a claim to be legitimate is closely linked to the coercive nature of law.¹⁸ But this should in no way be understood as reducing authority to force. On the contrary, as Alexander Kojéve points out “Authority is the antithesis of force, and reducing authority to force means to deny authority”.¹⁹

This examination of the legitimacy of the legal order cannot be undertaken by a legal doctrinal investigation. Doctrinal legal science allows us to ascertain which particular acts or decisions are valid acts which can be imputable to the legal order, and to criticise particular acts or decisions by reference to normative principles immanent to that legal order. But the legitimacy of the legal order itself is presupposed – the legal order cannot legitimate itself ‘by its own bootstraps’, and legal science alone cannot address the question of the legitimacy of the legal order as a whole.

To that end, Chapter 2 will conduct an examination of the claim to legitimacy which is made by the legal orders of the member states. The question asked here can be summarised as ‘why should the fact that a particular norm is a valid norm of the legal order of Sweden, or Portugal, or Malta, give rise to a claim that the addressees of that norm have a duty, a moral duty, to comply with that norm?’.

This question will require an examination not only of the legal order as an autonomous normative order, but also of the place of that legal order within the normative structures of the society of that state, as a whole. The methodological tools through which this inquiry is conducted are derived from political philosophy, and in particular by reference to Claude Lefort’s theory of democracy. This is approached as an attempt at reconstructing the presuppositions present in the practice of law in the legal orders of the member states themselves, rather than as an attempt to elaborate universal principles.

In Chapter 2, I map out the different ways in which this legitimacy can be understood, both in terms of the object of legitimacy and the approach to legitimacy, as well as the different grounds that can be used to found legitimacy. Once that mapping exercise is done, I contrast two different understandings of legitimacy – the understanding of legitimacy that pertains to the totalitarian political form of society, and the understanding of legitimacy that pertains to the democratic political form of society. This political philosophical understanding of democratic legitimacy constitutes the normative foundation of this book, from which the legal theoretical reconstruction of the relationship between human rights and legitimacy is built.

This normative foundation is not presented as mere background. It shapes and influences both the reconstruction of the deep structures of the legal order which is carried out in the rest of Part I and the critique of EU adjudication of fundamental rights which is carried out in Part II. As Tuori points out, any reconstruction of the deep structure of law will have normative implications²⁰ and entail normative commitments on the part of the scholar carrying out the reconstruction.²¹ So in this book, that reconstruction will be sensitive to the finding that the legal order which is being reconstructed is one whose claim to legitimacy is a claim to democratic legitimacy.

That claim to democratic legitimacy shapes the way in which the legal order, and the practice of law, are approached as an object of study. Let me clarify this important point: If we consider that the law’s claim to legitimacy is founded on its democratic provenance, then this requires us to adopt a particular concept of law, which will enable such a claim to be made. To do otherwise would be to accept that the claim to legitimacy that law makes is not made in good faith.²² As Dworkin points out,²³ there is a link between the political philosophical account of what he terms ‘the force of law’²⁴ and the legal theoretical account of the concept of law.

Taking the normative foundations set out in Chapter 2 as a point of departure, I investigate, in Chapter 3, the connection between human rights and democracy from a legal theoretical point of view and reach two interlinked conclusions. The first is that human rights, rather than being a constraint on the will of the people, are a condition of that people’s very existence. It is the act of claiming human rights that allows those over whom authority is claimed to reflexively identify themselves with a ‘people’ who would be able to author the laws claiming authority over them. In effect, t...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• List of abbreviations
• 1 Introduction
• PART I The legitimacy of national law
• PART II EU fundamental rights
• Index