Europe's Other

European Law Between Modernity and Post Modernity

Peter Fitzpatrick, James Henry Bergeron

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429814556
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1998, this volume focuses critically on the European identity of the law of the European Union, of national law and the law of human rights. It is primarily concerned with the ways in which European identity is created through the rejection of a malign Other constituted in opposition to all that a virtuous Europe and its law, are supposed to be. The construction of this Other is explored in claims of the EU legal order to a unity and coherence transcending the nation-state; in the assertion of a European identity through laws effecting cultural, immigration and security policies; and in the claims to a lofty 'European-ness' made by national law and the European Convention on Human Rights. A major contribution to the understanding of European Law in the terms of the debates over modernity and postmodernity, this book will interest those involved with studies of the European Union and its law, with critical legal studies and also with socio-legal studies.

PART I
BETWEEN MODERNITY AND POSTMODERNITY

1 An Ever Whiter Myth: The Colonization of Modernity in European Community Law

James Henry Bergeron

Metaphysics – the white mythology which reassembles and reflects the culture of the West... has erased within itself the fabulous scene that has produced it, the scene that nevertheless remains active and stirring, inscribed in white ink, an invisible design covered over in the palimpsest. (Jacques Derrida, Margins of Philosophy)

The nearer your destination, the more you’re slip-sliding away.
Paul Simon, ‘Slip-Sliding Away’

INTRODUCTION

This first chapter examines the ontological structures underlying EC law and the legal scholarship by which it is transmitted. It is a commonplace of EC legal studies that the Court of Justice has traditionally employed a purposive approach to the interpretation of EC law when weighing the scales of justice in cases before it. That approach has been variously described and evaluated in terms of integration (Easson, 1988), teleological jurisprudence (Louis, 1979), and the legal expression of une certaine idée de l’Europe (Pescatore, 1983), yet the meaning of integration, the nature of its teleological legal subject, and the substance of that certaine idée seldom extends beyond the surface level of description or analysis.¹ Indeed, the scholarship of Community law is conspicuous for the relative absence of critical voices, a more common criticism of judicial activism being that the Court has not gone far enough.² It is proposed that this tradition of critical restraint and general support for the Court’s role stems from values deeply embedded in the discourse structure of EC law; values which the Court and the European legal community see as essential elements of European identity. The triumph of the European legal order consists precisely in this – that EC law has captured and colonized the Enlightenment concept of progress in a way which makes the concept inseparable from the Community institutions, and most especially from the Court. The result is not so much a l’Europe des juges as the legal community acting as a kind of ‘vanguard party’, redefining the essential elements of modernity – individuality, universalism and primitive negation – in European terms. It is in the chorus of scholarly approval of this discourse that the unity of the European legal order rests.

At the heart of the discourse of EC law is myth. Not myth as a child’s fable, but as a transforming signifier capable of re-ordering the ‘radical imaginary’ of the European polity. The successful ‘constitutionalization’ of the EC Treaties, and the consequential relative autonomy of the Community, owes much to the incorporation into European Community law of the mythical structures of modernity which imbue national political culture and, increasingly, the political culture of a globalized West.³ The social contractarian justifications for the primacy of Community law; the implication of a primitive ‘other’ in the form of the old ‘nation’ state; the establishment of Community law and its sovereign legal subject as a transcendent entity; and their usurpation of the myth of progression collectively constitute a colonization of the mythical structure of national law and the representation of that structure as an external and autonomous, yet transcendent and supreme entity – a sovereign European law only tenuously connected to state, nation or community. This mythical reconciliation of contradictions results in a further ‘whitening’ of law and Western society.

MYTH AND THE STRUCTURE OF MODERNITY

Recent critical work on the nature of modem law has emphasized the mythical elements inherent in its structure (see Carty, 1990, 1991; Derrida, 1990, Goodrich, 1990). As Fitzpatrick points out,

The mythic composition of law can be made out in its contradictory attributes. Law is autonomous yet socially contingent. It is identified with order yet it changes and is historically responsive. Law is a sovereign imperative yet the expression of a popular spirit (Fitzpatrick, 1992, p. x)

In an attempt to understand how modem law maintains its apparent unity in spite of those contradictions, Derrida, Fitzpatrick and others have focused attention on the ways in which Occidental being takes its identity in negation of certain primitive ‘others’. In this act of negation, Occidental being rejects external sources of meaning and value, and endows itself with deific properties of transcendence, universal being and infinite progression. In doing so, a mythology of the Enlightened Individual is evoked which serves much the same social functions as myth in ‘pre-modem’ societies.

Myth serves essential social functions. Far from being a mere superstition or fable, myth defines reality. It endows a society with sacred origins, identity and purpose. As Eliade notes,

Myth narrates a sacred history; it relates an event that took place in primordial time, the fabled time of the ‘beginnings’. In other words, myth tells how, through the deeds of Supernatural Beings, a reality came into existence ... Myth, then, is always an account of a ‘creation’; it relates how something was produced, began to be. (Eliade, 1963, pp. 5-6)

Myth also distinguishes between order and chaos, and between nature and culture; it establishes the power and symbolism of the ‘centre’; myth avoids the ‘terror of history’ by allowing a ‘return to origins’. Above all, myth mediates the contradictions of human existence. It transcends the divide between the particular and the universal, the profane mortal world and the sacred, eternal cosmos (see Adorno and Horkheimer, 1979; Eliade, 1965; Lévi-Strauss, 1963, 1986; Fitzpatrick, 1992). To accomplish this, archaic myth allows for human existence in separate and internally harmonious mythical realms. History is reversible: the profane can be purified, and environmental or social catastrophe remedied, in an ‘eternal return’ to the time of beginnings (Eliade, 1965).

The analysis of mythic structures undertaken below corresponds largely to that pioneered by Lévi-Strauss (see Lévi-Strauss, 1963, pp. 206-12). This model comprises the following elements: (1) that the meaning of myth resides not in any one element, but in the combination of those elements; (2) that myth exhibits specific and more complex properties than mere ‘language’, i.e. beyond ordinary phonemes, morphemes and sememes; (3) that these elements, or mythemes, are primarily concerned with a relation between functions (or symbols) and subjects; and (4) that the true mytheme constitutes a bundle of relations which are simultaneously diachronic and synchronic, langue and parole, existing in both reversible time and irreversible time. It explains not only the past, but the present and future. For the sake of example, Lévi-Strauss’s famous deconstruction of the Oedipus myth is reproduced in Figure 1.1 (see Lévi-Strauss, 1963, pp. 13-218). The story is broken into four columns representing discrete types of relations.

Figure 1.1 Lévi Strauss’s deconstruction of the Oedipus myth

By disregarding one-half of the diachronic dimension of the Oedipus myth (left to right), and focusing only on the columns as a unit, the myth’s inherent meaning is made explicit: the first column relates to events which overrate the blood-tie; the second to its under-rating. Third column events relate to monsters being slain by men. In Greek mythology, monsters were seen as creatures whose death was a condition precedent to the emergence of humanity – a humanity born directly from the Earth itself (and not originally from the union of man and woman, thus autochthonous). This struggle is implicit in the battles with the Dragon and Sphinx, yet their contemporary existence is an implicit denial of the autochthonous nature of man. Conversely, the fourth column deals with elements of the myth which relate to lameness or difficulty walking. A common trait of world mythologies relating to the autochthonous nature of mankind is the newly arisen beings’ inability to walk, or to walk only clumsily. Thus the fourth column is linked by the affirmation of the autochthonous nature of mankind. Column four is to column three as column one is to column two. The self-contradiction of both pairings is overcome by recognition of the structural similarity of their contradictory attributes.

By a correlation of this type, the overrating of blood relations is to the underrating of blood relations as the attempt to escape autochthonomy is to the impossibility to succeed in it. Although experience contradicts theory, social life validates cosmology by its similarity of structure. Hence cosmology is true. (Lévi-Strauss, 1963, p. 216)

This form of reasoning, although logical (and indeed highly sophisticated) in its own terms, was anathema to Baconian and Newtonian models of scientific reason, which purported to supplant myth and superstition with scientific truth based on Cartesian principles of ‘rational’ mind. The supernatural gives way to the natural; religion to science and history; and society to the individual. Yet the structures of Enlightened thought betray a strong fellowship to archaic myth. By creating itself in historical time, rather than in sacred time, the sovereign individual of Enlightenment internalizes the ‘terror of history’ which it sought to avoid; internalizes it as part of its essential self (see Adorno and Horkheimer, 1979, pp. 27-30; Eliade, 1965, pp. 150-60; Fitzpatrick, 1992, p. 28). In doing so, the subject of Enlightenment (and ultimately of liberalism) becomes the self-reflective and unitary source of meaning and value. The subject itself transcends the contradictions between the general and the particular, fate and fortune, the profane and the sacred, by the mere fact of its existence, eternal progression and universal becoming. The tremendous contradictions inherent in such a claim, particularly in a society committed to scientific understanding, ‘rational’ enquiry etc., a society which ‘dared to know’, is resolved by defining itself not in terms of what it is, but in terms of what it is not.⁴ Derrida, writing of the impossibility of escaping metaphor in Western metaphysics, describes the phenomenon as the creation of ‘white mythology’ (Derrida, 1982, p. 213).

Thus ‘denigrated myth becomes the obverse of a Western world’, a world which ‘now took identity as the culmination yet negation of all that preceded it’ (Fitzpatrick, 1992, pp. 29-30). This identity is defined and opposed to certain primitive and myth-ridden ‘others’, in which Occidental being recognizes its own origins and away from which it advances in a constant progression. So constituted, the outstanding characteristic of modernity is raw human will, the ‘will to power’ as Nietzsche recognized.

The Enlightenment rejection (and implicit absorption) of myth is reflected in the structure of Western law and in the claims of unity, universality and progression made on behalf of its legal subject. Thus the ‘Sovereignty of the People’ is reflected in the power of positive law, yet the potential absolutism of that power is tempered by judge-made law which derives from other sources – reason, general principles etc. The inherent irreversibility of statute (and thus the reality of history and the contingency of life) is juxtaposed to the reversibility of the ‘good old’ common law (or Roman/Civil law) representing eternal reason. And within the latter, the subject-matter of the law inherently defines its legal subject. Such claims, of course, can themselves only be mythical. Thus the rejection of mythology in modem law is part of the mythology of modem law (Fitzpatrick, 1992, p. ix). Given the loss of a transcendent divine or natural law as the source of authority to substantiate its extensive claims, modem law and its legal subject takes identity from what it is not. And what it is not is the primitive, the particular and the myth-ridden.

Thus modern law emerges, in a negative exaltation, as universal in opposition to the particular, as unified in opposition to the diverse, as omnicompetent in contrast to the incompetent, and as controlling of what has to be controlled. (Fitzpatrick, 1992, p. 10)

THE MYTHICAL STRUCTURE OF EUROPEAN COMMUNITY LAW

From the legal perspective, the European Community has often been characterized as a ‘rolling back of the state’, a charter of free movement and economic liberty based on the restraint of national law in favour of the individual. Such a view ignores the lesson of Western history that the rise of the ‘individual’ is co-terminus with, and in fact indispensable to, the development of the modem state. In the Community experience, the rise of the individual in EC Law is strongly linked to the jurisprudence of the Court of Justice, particularly the doctrines of direct effect and supremacy of Community law. By thus elevating the individual as a sovereign subject of the Treaties, in competition with the nation-state, the European Court of Justice broke the monopoly of the nation-state over its defining characteristic – its claim of sovereignty – and developed in its jurisprudence a tradition of discourse which has been remarkably successful in claiming the autonomy and supremacy of the Community legal order. In doing so, the Court of Justice, in a consistent development of case-law supported by a plethora of Community legal scholars, has colonized the mythical structures of modernity which characterize national law. Taking as its clay an ambitious international treaty, the Court creates the European legal order and its sovereign legal subject as transcendent being, endowed with those familiar qualities of universality and progression. And in so doing, constructs the legal subject of the Treaties as an extroversion of the nation itself.

ESTABLISHING TRANSCENDENCE: THE DIRECT EFFECT AND SUPREMACY OF EC LAW

The 1957 Treaties of Rome were negotiated and ratified as international treaties, in accordance with the rules of public international law. As such, they were an agreement between states. Nowhere in the EEC Treaty are individuals mentioned. This is important, because, with very few exceptions, international law does not recognize the existence of individuals. The universe of international law is conceived of as populated only by nation-states, reflecting the dominant role of the ‘Great Powers’ in defining this ‘international’ law. That is to say, the individual is not the transcendent source of being in international law, as it is in the law of liberal-democratic nation-states. This lack of a role for the legal individual of international law paralleled the lack of state stru...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Acknowledgements
• Introduction
• Part I Between Modernity and Postmodernity
• Part II European Identity in EU Law
• Part III European Identity in National Law and in the European Convention
• Index