Chair Prof. Arjen Meij (Honorary Professor University of Luxembourg)
Respondent Prof. Johan van der Walt (Professor of Philosophy of Law, University of Luxembourg)
Abstract:
Legal life starts with a lot of reading – mostly statutes, case law, and doctrinal work like handbooks. But very soon a student is invited to write, to practice for one’s own. Legal life, therefore, is a literary, creative life. We constantly create texts, and tell and re-tell stories as we shift between the concrete facts of a case and the abstract rules of statutes, and, in more complex cases, the higher order legal norms of general principles of law, or even the abstract idea of “justice”. As legal professionals, we have the responsibility to ask ourselves: how do we do that, by what art? What do our texts reveal about us as a community of writers, and how do they affect our community of readers? What narratives do they reveal and create?
More particularly, it is proposed to present a framework for a hermeneutical analysis of the way in which a judgment of the Court of Justice of the EU (CJEU) reflects and shapes the ways of thinking and talking about EU law, the stories we tell ourselves, about human life and human interaction in the Europe. In EU law a multitude of interests, cultures, languages and legal traditions have to be accommodated. Life in EU law is a complex practice of reading and writing, of cross-cultural ‘meaning making’. Not only a new legal order is being shaped, but also a new reality for individuals through the legal texts we produce.
This particular way of thinking about EU law – and more specifically about the praxis of writing judgments at the CJEU – is informed on the one hand, by the speaker’s own experience with the legal practice, as it could be of any EU law practitioner, and, on the other, by the work of French philosopher Paul Ricoeur and American “Law and Literature” scholar James Boyd White.
Paul Ricoeur, in his reflections on interpretation, presents an active, dynamic view of the praxis of interpreting. He saw the process of interpretation as comprising of a stage of explaining the workings of a particular text through structuralist (narratological) analysis of the level of story, narrative and narration, and the ensuing stage of understanding that is in essence self-understanding in light of (“in front of”) the text. Ricoeur emphasized that “in hermeneutical reflection (…) the constitution of the self is contemporaneous with the constitution of meaning.” Furthermore, when we place Ricoeur’s hermeneutics in the context of his observations about the law and adjudication, a refined, “triad” of legal ethics based upon his “little ethics”, emerges.
The central question that White poses throughout his entire oeuvre, is: “How are we to understand and to judge our acts of language – including our use of language in the law – and the character and community we propose therein?” More particularly, White identifies three further questions that can help a careful reader along the path of understanding what it means to live a meaningful life in law and literature. The first step in this process is to identify the set of resources of speech and thought that we use and act upon (and that, in their turn, act upon us, shaping what we can say and think). The second step is to ask how this inheritance is used, how, by what art and to what end the speaker acts upon it. Finally, the third question is about the character that we create for ourselves, and the set of relations that are created and enacted in our speech, with our audience and with the people we speak about. With this last question, the practice of legal interpretation and writing becomes an ethical pursuit.
A synthesis between Ricoeur’s and White’s teachings leads to a framework in which case law of the CJEU may be analyzed on the level of the practical “toolkit” of legal rhetoric, but also on the level of underlying narratives. In a series of case studies this synthesis between White and Ricoeur will be put to the test. The case studies group together, for instance, judgments on digitalization and privacy, which may reveal a particular image of (wo) mankind embedded in EU law and the CJEU’s legal reasoning on this topic. A more thorough understanding of how these narratives play a role in legal rhetoric and reasoning may contribute to the quality of the adjudication.