Abstract
This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar.
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Notes
Both mono- and multi-cultural conceptions of society tend to define culture(s) as homogeneous, static, exclusive and incommensurable, thus locking people into their own cultural perspective as something that completely determines their norms, values and actions. Propagators of a mono-cultural conception of society would be conservatives like Samuel Huntington, but – étonné de se trouver ensemble – also postmodern legal comparativists like Pierre Legrand who arrive at similar positions because of their emphasis on the incommensurability of legal cultures. Taylor et al. (1994) and Kymlicka (1995) could be taken as prime examples of a multi-cultural conception of society, while e.g. van Brakel (1999) and Glenn (2004a) could respectively provide the epistemology and the comparative legal perspective of a more intercultural conception of culture.
The point is of course: who are we? For an interesting and relevant perspective on this question see van Brakel (1999). When I state that we ‘decide’ to construct our identity or (re)build our society I do not mean to endorse a naïve voluntaristic perspective, but rather a pragmatist approach in the tradition of Peirce and Dewey.
About his choice for tradition instead of culture see Glenn (2004b). For a critical assessment of Glenn’s ‘theory of tradition’ see Halpin (2006). Halpin understands Glenn’s ‘tradition’ in terms of Stanley Fish’s interpretive community and Wittgenstein’s language games. This is an interesting way to elaborate the epistemological underpinnings of Glenn’s practice of comparative law. However, Halpin’s focus is rather linguistic; to understand Glenn’s tradition and Wittgenstein’s language games we may need more emphasis on what Wittgenstein calls forms of life. See also footnote 16 on the fragility of rule interpretation and van Brakel (1999), especially section 4 on ‘first contact we’.
Glenn (2004a), p. 33. See also idem pp. 156–161, on European identities. An extensive and critical review of his prize winning Legal Traditions of the World can be found in: Nicholas HD Foster (ed.), A Fresh Start for Comparative Legal Studies? A Collective Review of Glenn’s Legal Traditions of the World 2nd edition, Journal of Comparative Law 2006 (1), available at: http://www.wildy.co.uk/jcl/. http://www.wildy.co.uk/jcl/.
See Latour’s proposition for an alternative preamble for the CT, that would appeal to the ‘becoming’ of a European people, in reference to the shared history of the European national states, aiming at a redistribution of the attributes of sovereignty in order to create a liberal Europe that will be liberal ‘because it will have uncovered the freedom to explore the common good against the joint pretensions of the invisible hand of the markets and the visible hand of States to define the common good without contestation and discussion’ [translation mh], Latour (2005).
Art. I-3 CT, as in Art. 151 TEC.
Art. II-82 CT, as in Art. 149 and 151 section 4 TEU.
Art. I-8 CT.
Art. III-270, section 2 CT.
See Weiler on this issue, who actually pleads against a formal European Constitution, fearing it will in the end eliminate the ‘community of others’ that the Union still forms at this moment. Weiler (2001).
Art. 2 of the TEU reads: ‘The Union shall set itself the following objections: (...) to assert its identity on the international scene, (....)’.
Selfhood and otherness are thus mutually constitutive. Otherness is a broad category and at some point in time it will be necessary to distinguish between the other as adversary and the other as enemy (see Mouffe (2000) who differentiates between the two as sharing or not sharing a symbolic space). Similarly it may be necessary to distinguish between the other as recognisable other and the other as stranger (as was pointed out to me by Lindahl, referring to Waldenfels, 1999). My point concerning these highly relevant distinctions is that the borders between adversary and enemy, recognisable other and stranger are necessarily fluid and dynamic. An enemy can become an adversary, while a familiar other can become a stranger, to face this possibility we need an epistemology of intercultural communication. See for a challenging example of such an epistemology in the case of ‘first contacts’ Brakel (1999).
Glock (1999): “(..) Wittgenstein does show that the identity of an object with itself does not provide us with an absolute paradigm of what counts as ‘doing the same’ in RULE-FOLLOWING. What counts as doing the same is determined only relative to the rule, and hence the notion of doing the same cannot provide an independent standard: whether my saying ‘16’ after ‘2,4’ counts as doing the same depends on whether I follow the series y = 2x or the series y = x². There is no single, context-free or purpose-independent way of determining what counts as doing the same”. Glock actually writes ‘6’ after ‘2,4’ but I take it that he meant either ‘16’ or ‘8’.
Government presumes jurisdiction and taxation. But even in societies without a state jurisdiction is crucial for the survival of the society, especially since in that case jurisdiction is voluntary and consensual in the end. For a comparative, historical and anthropological analysis of the importance of criminal jurisdiction see Hildebrandt (2002). Also – in English – Hildebrandt (2006b, c).
A bran tub is ‘A lucky dip consisting of a tub filled with bran, paper or wood shavings, etc with prizes hidden in it’ (http://www.allwords.com). The metaphore emphasises the richness of the information available within a tradition and the fact that the development of a tradition depends on which information is actually chosen to be acted upon.
About the problematic effectiveness of administrative of the law, see my doctorate dissertation Hildebrandt 2002.
The fact that criminal law is thought of as a last resort does not mean that its importance is marginal rather than crucial for the self-identity of a community. It indicates that the legal norms protected by the criminal law have a tacit rather than explicit hold on us, which makes violation less likely because their normative appeal comes from within, from the core of who we think we are.
Interestingly, the European Arrest Warrant (EAW) restricts the principle of dual criminality, while the proposal for a European Evidence Warrant (EEW) comes close to abolishing it all together (see art. 2 of the Council Framework Decision on the EAW (2002/584/JHA) and art. 16 and 24 of the Commission’s Proposal for a Framework Decision on the EEW COM (2003) 688 final). See the verdict of the German Constitutional Court, discussed in footnote 47.
See section “Criminal law, local justice and sovereignty” below.
Ricoeur (1992), pp. 113–169, on narrative identity.
About the Corpus Iuris, see Delmas-Marty (1998).
See about the European Arrest Warrant footnote 47, for an example of imposed criminalization of environmental offences see section ““Reception” of the CT by the European court of justice” below.
I will presume the reader to be familiar with the acquis communautaire and the present attribution of competences within the three pillars of the EU, for a detailed overview in relation to criminal law see Pradel and Corstens (2002). Those less familiar with the state of the art of European criminal law in and of the Union should be able to follow the general outline, as I will frequently compare the CT with the present situation.
See Lindahl (2003), who discusses the relationship between the constituent and constituted power of the legal order of the European Community as posited by the European Court of Justice in its decisions Van Gend & Loos (Case 26/62 Van Gend & Loos [1963] ECR, 1–30) and Costa v ENEL (Case 6/64 Costa v ENEL [1964] ECR, 585–615). He refers to the creative, transgressive innovation that initiated a new supranational legal order sui generis, projecting its birth into a ‘new’ past. While this innovation was not determined by the Treaty of the EEC, it was still congruent with its text. What is interesting here is the performative character of the unity that is posited and implied (represented) with the community that is claimed, idem p. 440, 448.
The first pillar regards the articulation and implementation of common policies, concerned with the free movement of goods, persons, services and capital; agriculture; visas, asylum and immigration; monetary issues; the environment and other issues deemed of importance for the realisation of a common internal market. The first pillar is usually referred to as Community law; it has a jurisdiction sui generis that has supremacy over national jurisdiction; and its legislative procedure is based on co-decision of Council and Parliament. One could say that the first pillar represents a federal aspect within the European Union. The second pillar concerns a common foreign and security policy and it is entirely intergovernmental. The third pillar regards police and judicial cooperation in criminal matters, its jurisdiction is intergovernmental but Parliament, Commission and Court have modest roles in the process of legislation and adjudication. The main competence is with the Council that has to decide unanimously to be able to act in this field; one could say the third pillar has confederal aspects.
Jurisdiction is understood here in the sense discussed in section “Identity and legal tradition” above.
This redistribution is explicitly articulated in art. I-11 (principles of subsidiarity and proportionality; federal aspect), art. I-12 (definition of exclusive, shared and other competences; sui generis mix of federal and confederal aspects), art. I-13 (attribution of exclusive competences of the Union; federal aspect), art. I-14 (attribution of competences shared by the Union and the Member States; mix of federal and confederal aspects), art. I-15 (coordination economic and employment policy by the Union; sui generis aspect confirming the Union’s original economic objectives), art. I-16 (common foreign and security policy by the Union; confederal aspect), art. I-17 (Union competence for support, coordination or supplementary policy; intergovernmental aspect) and, finally art. I-18 (a flexibility clause for unforeseen issues that demand new competences for the Union).
Art. I-14 section 2 CT.
See also Art. I-11 section 3, which defines the principle of subsidiarity.
C-176/03, regarding EU Framework Decision 2003/80/JHA. On the implications of this crucial judgement see Castillo Garcia (2005).
Title VI TEU, especially Art. 34 section 2 (b) and Art. 39 TEU.
Title XIX TEC, first pillar: supranational; primacy of Community Law art. 47 TEC.
Art. I-34 and III-396 CT.
The CT incorporates a limited set of fundamental rights concerning criminal law, and links the interpretation and application to the ECHR, see section “Human rights of European citizen”.
C-105/03.
Art. 8 (4) of the EU Framework Decision 2001/220/JHA of 15 March 2001.
This observation should be qualified in the sense that the Court maintained that Framework Decisions cannot have direct effect (art. 34 TEU), meaning they cannot be invoked by individuals before national courts, as is the case with Community legislation since the Van Gend en Loos Judgement, D-26/62 (1963) ECR1. One could say the Court introduced a notion of indirect effect in the legislation of the third pillar. See Castillo Garcia (2005), p. 33 note 21. A second difference that remains relevant between first and third pillar legislation is the fact that the Commission cannot initiate infringement procedures against Member States that have not adequately transposed Framework Decisions into their national jurisdiction, see Castillo Garcia (2005), p. 30, 31.
Buruma (2002) speaks of federalisation.
The Convention on the protection of the financial interests of the European Communities (1995).
Castillo Garcia (2005), p. 30. He refers to the communication of the Commission to the European Parliament and the Council on the implications of the Court’s judgement of 13 September 2005 (C-176-03), in which the Commission assesses the need to revoke other Framework Decisions that concern criminal sanctions aimed to enforce common policies of the Community.
Klip (2004) suggest two ways to determine how European Criminal Law should be given shape and content: deriving it from the work already performed by the Union or inducting it from common traditions in the Member States.
Delmas-Marty (1998), p. 88. Community law has a major impact on criminal law in the EC in order to prevent violation of one of the four freedoms (of movement for goods, persons, services and capital), see idem on neutralisation and augmentation of national penal law, pp. 90–106.
See section “Criminal law, local justice and sovereignty” above.
The fact that mutual recognition may diminish legal protection has already led to the annulment of the German European Arrest Warrant Act, by the German Constitutional Court (18th July 2005 – 2 BvR 2236/04). The reason was that, according to the court, the European Arrest Warrant Act infringed Article 16.2 sentence 1 (a relative right to freedom from extradition, legal certainty) and art. 19.4 (recourse to court) of Germany’s Basic Law. The Constitutional Court did not denounce the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), they declared void the Act by which Germany aimed to implement the Framework Decision, claiming there was room for the integration of the said protection.
See European Parliament Resolution A5–0145/2001 on mutual recognition on final decisions in criminal matters, AA, about the difference between dual criminality and double criminalization.
Art. II 107–108 and Art. II-112, section 3 and 113 CT.
Art. III-270, section 2 sub b CT.
The Council has drafted a Framework Decision on certain procedural rights in criminal proceedings throughout the EU (COM (2004) 328 final), see on the issue of competence and scope of this Framework Decision Lööf (2006).
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Acknowledgements
I want to thank Antony Duff and Christoffer Wong for their invitation to join the workshop and all participants for their interesting comments. The paper was also discussed at the department of legal philosophy of Tilburg University, by the research group of Bert van Roermund and Hans Lindahl, which supplied challenging comments on the use of the concept of tradition and on the issue of identity. I thank two anonymous referees for their salient comments.
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Dr. Mireille Hildebrandt teaches law and legal theory at Erasmus University Rotterdam and works as senior researcher at the Vrije Universiteit Brussels.
An earlier version of this text was presented at the special workshop “Toward a European Criminal Law”, organised by Antony Duff and Christoffer Wong at the world conference of the IVR (International Association of Legal Philosophy) in Granada on 25th May 2005.
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Hildebrandt, M. European criminal law and European identity. Criminal Law, Philosophy 1, 57–78 (2007). https://doi.org/10.1007/s11572-006-9006-x
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DOI: https://doi.org/10.1007/s11572-006-9006-x