OU blog

Personal Blogs

Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

'TRESPASSERS W'

Visible to anyone in the world
Edited by John Gynn, Friday, 2 Nov 2018, 09:00

“The Piglet lived in a very grand house in the middle of a beech-tree, and the beech- tree was in the middle of the forest, and the Piglet lived in the middle of the house. Next to his house was a piece of broken board which had: “TRESPASSERS W” on it. When Christopher Robin asked the Piglet what it meant, he said it was his grandfather’s name, and had been in the family for a long time. Christopher Robin said you  couldn’t be called Trespassers W, and Piglet said yes, you could, because his grandfather was, and it was short for Trespassers Will, which was short for Trespassers William. And his grandfather had had two names in case he lost one — Trespassers after an uncle, and William  after Trespassers.  “I’ve got two names,” said Christopher Robin carelessly. 

“Well, there you are, that proves it,” said Piglet”.

A A Milne's characters including Pooh and Piglet

Image of A A Milne's characters from Britannia Imagequest

Koen Lenaerts, President of the Court of Justice of the European Union (CJEU) since 8 October 2015, delivered an excellent lecture this evening at Edinburgh University’s Playfair Library.

The lecture was the latest in an outstanding series deservedly celebrating the eminent constitutional scholar Professor J.D.B. Mitchell and marked 50 years since the founding of the Centre of European Governmental Studies in November 1968.

Professor Mitchell was the driving force behind the creation of this centre, pre-eminent in the UK in the study of the institutions, policy and law of the European Union and since re-labelled the Edinburgh Europa Institute.

Titled, ‘Judicial engineering in shaping the Union’s legal order. A tale of combining, distinguishing and balancing norms’, Koen Lenaerts’ lecture illustrated the way that the EU’s judicial engine-room operates in seeking to give effect to the EU’s treaty objectives; involving thoughts on matters such as competences, EU citizenship and the Internal Market.

A selection of cases was provided to illuminate how the CJEU operates.  For example the way the CJEU operates in harmony with international law was demonstrated through cases such as Case C‑573/14 - Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani.

Case C‑673/16 - Relu Adrian Coman, Robert Clabourn Hamilton, Asociaţia Accept v Inspectoratul General pentru Imigrări, Ministerul Afacerilor Interne - was used to show how the CJEU has sought to approximate the recognition of same-sex marriage across the EU and also to compare and contrast the operation of the CJEU with the US Supreme Court.

Interestingly, it was suggested that the CJEU could be viewed as following in the footprints of the US Supreme Court in so far as it was fulfilling the central constitutional role established, to a degree autonomously, for the US Supreme Court by Chief Justice John Marshall in the case of Marbury v Madison (1803).

Yet, in his influential book, Law’s Empire (1986), Professor Ronald Dworkin notes that the US Constitution could actually have been interpreted in a way that, instead, placed the power to test the legal power of Congress, a state or the president, in the hands of these constitutional actors themselves – operating under a legal and moral duty.

The US Supreme Court’s interpretation seems not too conceptually distant from the claim of heritage ingeniously construed, by Piglet, from the famous woodland sign ‘TRESPASSERS W’.

Indeed, it doesn’t seem too outrageous, hearing of the CJEU following in the footsteps of the US Supreme Court’s constitutional role – that initiative having no greater anchor in the constitutional framework of the US than having being seized, somewhat unilaterally, by the Court itself – to discern the limp of a constitutional Achilles’ Heel in those footprints.

SO a rather celebrated set of fictional footprints seemed to spring suddenly to mind – with the integrity of any claim of constitutional pedigree following Chief Justice Marshall’s judicial innovation rendered a little shaky by Professor Dworkin’s analysis. 


Footprints in the snow

Two sets of paw-prints

“Pooh says that it might be a Woozle, or it might not, and Piglet joins in with the tracking and walking in circles to see if they can find out for sure. And after a little while Pooh stops walking, and says that it's very funny, but there are now two sets of paw-prints, which means...well, what does that mean?”

(A.A. Milne’s Winnie the Pooh, chapter three: In which Pooh and Piglet go hunting and nearly catch a Woozle)


Permalink
Share post

This blog might contain posts that are only visible to logged-in users, or where only logged-in users can comment. If you have an account on the system, please log in for full access.

Total visits to this blog: 190801