“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”.
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.
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)
Comments
Self-Reference and Legitimacy: The Woozle Problem in Constitutional Systems
Reading back through older posts for inspiration, this one stopped me. The Winnie the Pooh frame is not decoration. It is doing structural work. The Woozle episode is a self-referential loop. Pooh and Piglet follow footprints. They walk in circles. They find more footprints. They conclude there are more Woozles. But the second set of prints is their own. The observation has produced the phenomenon. That is reflexivity in its purest form. The system is tracking itself and mistaking the track for an external object. The Trespassers W story is the same problem applied to legitimacy. Piglet's grandfather's name is derived from a misreading of a sign. The name is real. It has been in the family for generations. But its foundation is a boundary error. A sign that meant "trespassers will be prosecuted" became a family name. The legitimacy is constructed, not discovered. Lenaerts describing the CJEU following in the footprints of the US Supreme Court is the same structure. The US Supreme Court's power of judicial review is not in the Constitution. It was seized in Marbury v Madison. The Court created its own authority. Subsequent courts followed the footprints. The authority became real because it was exercised. Dworkin's point is that the Constitution could have placed that power elsewhere. The counterfactual is real. The system could have developed differently. But once the loop started, it reinforced itself. The footprints became a path. The path became a norm. The norm became constitutional. The question the post raises without quite asking it is this: how much of constitutional order is a Woozle hunt? How much of what looks like external authority is the system's own tracks, followed back to itself? Regards,
Russell Larke
BA (Hons) Business Management | MSc Candidate (Systems Thinking)
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