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The Enforcement of EU Law and ValuesEnsuring Member States' Compliance$

András Jakab and Dimitry Kochenov

Print publication date: 2017

Print ISBN-13: 9780198746560

Published to Oxford Scholarship Online: April 2017

DOI: 10.1093/acprof:oso/9780198746560.001.0001

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On the Legal Enforcement of Values. The Importance of the Institutional Context

On the Legal Enforcement of Values. The Importance of the Institutional Context

(p.28) 2 On the Legal Enforcement of Values. The Importance of the Institutional Context
The Enforcement of EU Law and Values

Giulio Itzcovich

Oxford University Press

Abstract and Keywords

This chapter argues that any sensible answer to the question of the role of explicit moral reasoning in adjudication must take into account a broad set of institutional facts. Whether the court aiming to ‘enforce values’ is the ECJ or whether it is a domestic constitutional court is an important distinction for many reasons, and this chapter attempts to explore these reasons and argue for their relevance. It first maintains that the current debate on the role of moral reasoning in adjudication is related to a set of institutional processes. The chapter then distinguishes two positions in the debate on the role of moral reasoning in adjudication: ‘normative legal positivism’ and ‘neoconstitutionalism’. Finally, this chapter clarifies some methodological and substantive consequences which can be drawn from the nexus that binds together the choice of interpretive method with the greater or lesser trust we have in the interpreter.

Keywords:   moral reasoning in adjudication, institutional processes, normative legal positivism, neoconstitutionalism, interpretive method, moral reasoning

1. Premise. Government by laws and government by values

The expression ‘enforcement of values’ may strike one as somewhat obscure and problematic. In what sense is a value the kind of normative standard that can be ‘enforced’? We know that values can be accepted, acknowledged, embraced, proclaimed, and promoted. Moral agents and public institutions are capable of recognizing that something is valuable (to them or per se) and provides reasons for acting or for refraining from acting in certain valuable or valueless ways. Moreover, we can follow, fulfil, satisfy, and comply with values: after having recognized that a state of affairs is valuable, moral agents and public institutions can act upon that belief and have recourse to that value in order to determine their duties or to assess other people’s behaviour. However, accepting a value and acting accordingly are not identical to enforcing that value; voluntary compliance and coercive enforcement are clearly distinct concepts. I may well recognize a certain standard of conduct as binding on me without intending to compel other people to accept it.

Thus, when we speak of the enforcement of values by the EU institutions, or within the EU by its Member States, we are not referring to the ability of the EU as a whole to live up to the standards it sets to itself. Rather, we are referring to the EU’s ability to compel other subjects—namely the Member States, the citizens of the EU, and perhaps individuals and institutions external to the EU—to comply with certain standards. Moreover, we are referring to the capability of the EU and of the Member States to react to the violation of those standards with coercive measures. In fact, values cannot just be accepted and fulfilled, embraced and satisfied: they can also be imposed. And coercive imposition might be the correct way of rendering the meaning of ‘enforcement of values’: the question would thus be how the EU and its Member States could compel observance of certain standards of conduct they believe to be of the utmost value.

However, this last formulation helps us to highlight why the idea of the enforcement of values by political and legal institutions might sound problematic. The obvious answer to how the EU and the Member States can compel observance of certain values is by issuing laws, provided that these laws fall within their competence and fulfil the values in question. Among the principles that the EU and the Member States embraced and proclaimed most solemnly we find the Rule of Law (‘The Union is founded on the values of […] the rule of law’, according to Article 2 TEU), and the Rule of Law demands ‘government under the forms of law and law in the form of clearly identifiable rules’, among other things.1 In a community based on the Rule of Law, no direct enforcement of values should ever be acceptable. Values as (p.29) such should be binding on those who accept them, but in order for values to be properly ‘enforced’, that is, to be coercively imposed upon somebody who does not embrace them voluntarily, they should first be transformed into valid laws according to the rules which govern the legislative process. Coercion should be effected exclusively by means of legal provisions which have been properly enacted by the established authorities, and the individuals directly concerned by the ‘enforcement of values’—more precisely, the enforcement of laws which entrench values—should have the right to independent judicial review.

Therefore, when we speak of the ability of the EU to enforce its values, we are neither referring to the ability of the EU voluntarily to live up to the standards it sets itself, nor to the EU’s ability to enforce its laws and have them applied to recalcitrant Member States, or by the courts and public officials of the Member States. We are referring to something distinct, but to what precisely?

One possible answer—certainly not the only one2—is that the enforcement of values concerns the choice of the methods used by the courts, and possibly by other officials, in determining the meaning of the rules they apply and in justifying the conclusions they reach. According to this understanding, the question of the enforcement of values is nothing but the questions of the standards on which independent courts, having doubts about the meaning and scope of the existing laws, rely to adjudicate hard cases.

Courts enforce laws, not values. The EU institutions and the institutions of the Member States cannot and should not enforce non-legally binding moral values. However, it can often happen that in order to justify their interpretive decisions on the content of a law, courts have recourse to standards of construction different from the literal meaning of the text, the intentions of the legislator, the objective purposes of the law, the coherence of a system, settled case law, etc; they can also make reference to the extra-legal consequences of the decision, and to the moral rights of the parties. In assessing the practical consequences of their decisions and in determining what is morally right and fair for the parties, courts might engage in explicit moral reasoning. They openly ground their decisions in moral principles and—in this limited sense—it can be said that they ‘enforce values’. Thus the question arises: under what condition is it appropriate for a court to rely on its best moral reasoning to adjudicate a hard case, that is, a case not clearly settled by existing law?

This question, as is well known, has received a variety of answers. My aim in this chapter is neither to review that normative debate on legal interpretation, nor to argue for or against a given solution. Instead, I will argue that any sensible answer to the question of the role of explicit moral reasoning in adjudication must take into account a broad set of institutional facts. Whether the court aiming to ‘enforce values’ is the ECJ or whether it is a domestic constitutional court is an important distinction for many reasons, and in what follows I will try to explore these reasons and argue for their relevance.

I will proceed as follows. First, I will maintain that the current debate on the role of moral reasoning in adjudication is related to a set of institutional processes such as the global spread of constitutionalism, the diffusion of written constitutions and declarations of human rights, the growing importance of rights claims in adjudication, and the processes of globalization and Europeanization (section 2). To put it briefly: the idea of the legal enforcement of values emerges because the legal systems of many countries recognize a great deal of value-laden legal provisions: rights declarations and constitutional principles (p.30) the application of which seems to entail the need for having recourse to moral considerations instead of formally established rules and arguments from authority.

Second, I will distinguish two positions in the debate on the role of moral reasoning in adjudication, which I will label ‘normative legal positivism’ and ‘neoconstitutionalism’. By normative legal positivism and neoconstitutionalism, I intend two opposite perspectives on the standards to be followed when interpreting and applying the law, particularly in the case of value-laden, open-ended legal provisions such as those establishing human rights and constitutional principles. I will argue that the choice between the two rival approaches must necessarily consider a variety of contingent legal, political, and social factors: we cannot accept or reject a normative theory of legal interpretation without first having analysed and assessed the institutional context in which the interpretation is performed. A purely theoretical-normative approach—one which explains and defends the ethical premises of legal positivism and neoconstitutionalism in order to support the choice of one over the other—would therefore be insufficient (sections 3 to 5).

Finally, I will try to clarify some methodological and substantive consequences which can be drawn from the nexus that binds together the choice of interpretive method with the greater or lesser trust we have in the interpreter (section 6).

2. The spread of rights

The debate on the proper criteria for interpreting human rights declarations and other open-ended and value-laden legal provisions has become increasingly topical in recent years as a consequence of a number of developments which are often expressed with formulas such as the advent of the ‘constitutional state’ (Verfassungsstaat, Estado constitucional de derecho) and the processes of ‘constitutionalization’, ‘integration’, and ‘globalization’ of the legal orders. These developments concern the content of positive law and the system of law-applying institutions as well as the theories and ideologies which prevail in the legal community about the best conception of democracy and the separation of powers, the role of the judiciary, the nature of the constitution, and the nature of international law, among other things. Various authors have described in different ways the characteristics of the constitutional state which influence the solution to the problems of legal interpretation. Aside from the cultural factor, such as the growing importance of ‘neoconstitutionalist’ theories of legal interpretation which I will highlight in the next section, the following three institutional factors seem particularly significant.

(i)The constitutionalization of fundamental rights. The first process is the global spread of written, rigid and justiciable constitutions which contain declarations of rights and entrench ‘values’ in the form of indeterminate legal provisions.3 Bills of rights are framed in a language that is solemn, ethically inspired, concise, and generic:4 their application to concrete cases often implies the adoption of highly controversial value choices. Judicial review of legislation therefore entails that the judiciary is empowered to ‘determine issues of profound moral and political importance, on the basis of very limited textual guidance resulting in legal decisions that may last for decades and are practically almost impossible to change by regular democratic processes’.5

(p.31) Moreover, the legal culture in many jurisdictions has developed techniques for the application of rights, such as the balancing test and the proportionality principle, that allow the judiciary to exercise a penetrating and yet flexible review of the activities of other branches of government.6 These techniques are premised on the notion that fundamental rights and constitutional principles are not categorical and absolute norms. Thus, it is often held that fundamental rights and constitutional principles must be applied in a case-sensitive way, fulfilled gradually and to various degrees, and must be concretized and balanced in various manner, from time to time, based on the circumstances of the controversies. In order to avoid that clearly defined rules prove to be over- or under-inclusive of future cases, many courts around the world refrain from constructing a system of rules, and instead apply fundamental rights and constitutional principles as generic and defeasible directives bound to enter into conflict one with the other in concrete cases. This understanding of fundamental rights and these techniques for their application seem to imply the necessity of having recourse to moral reasoning instead of purely formal legal arguments.

(ii)Diffusion and judicialization of fundamental rights. Not only the legislator but also private individuals might be required to respect fundamental rights according to the interpretations given by the courts. In the ‘horizontal’ relations between individuals, there is a widespread trend toward the growing presence and relevance of controversies framed in terms of rights different from the traditional property and contract rights. The courts of many countries adjudicate on violations of human dignity, on civil and political rights such as the right to privacy, to the physical and mental integrity of the person, freedom of speech and of association, and on economic and social rights such as the right to health. The courts apply human rights and the principle of equality to a variety of situations, such as family and work relations that in the past belonged to the private or social sphere that was subject to private law and not to constitutional law.

Thus, the violation of fundamental rights stops being the extreme case of ‘legal injustice’ potentially capable of sweeping away the legitimacy of public authority and justifying the appeal, if not to tyrannicide, to the right of revolution and to civil disobedience. Violations of fundamental rights no longer call into question the ground of political obligation and become, conversely, quite ordinary and frequent events that can come across in a large amount of cases and that the court system of the constitutional state manages on a daily basis. At first sight paradoxically, the increasing importance of fundamental rights is accompanied by their trivialization, as fundamental rights turn into a common currency used to describe and decide even the most routine and mundane conflicts of interests.7

(iii)Internationalization of rights. Since the second half of the twentieth century, universal and regional conventions for human rights protection have multiplied and have established a body of law that is often applicable not only to states, but also to (p.32) international organizations and even to private actors, such as transnational corporations and individuals.8 It is sometimes held that the point of these Treaties is not to establish mutual obligations between the contracting parties—obligations that would be interpreted strictly, having regard for the sovereignty of the states—but to create an effective system of individuals’ rights protection, which justifies evolutive, extensive, and teleological interpretation in order to ensure the full implementation of human rights.9

Thus, states are placed under the influence of legal interpretations rendered by courts belonging to different planes of a ‘multilevel system’ of fundamental rights protection.10 As there are no hierarchical relations between the various courts that participate in such a system, the free competitions between courts in the interpretation and application of rights creates the opportunity for constitutional conflicts and the consequent necessity of preventing and managing such conflicts through legal argumentation and pragmatic accommodation (the so-called ‘dialogue’ on the protection of fundamental rights11).

To sum up, we have three institutional processes that, although interrelated, can be analytically distinguished and that together explain the crucial importance in contemporary legal culture of the issue on the enforcement of ‘values’ through legal interpretation. (1) The spread of written, rigid, justiciable constitutions containing declarations of rights (rights constitutionalization); (2) The horizontal application of fundamental rights to private law relations and, more generally, the centrality of rights in today’s legal practice (rights diffusion); and (3) The birth of international human rights law and, especially in Europe, the development of a multilevel system of rights protection (rights’ internationalization, globalization, and Europeanization).

3. Normative theories of legal interpretation

The trends toward rights’ constitutionalization, diffusion, and globalization feed a wide debate on the role and justification of judicial review and rights discourse.

Many political theorists have envisaged a shift from aggregative democracy to deliberative democracy. The former is considered, following Schumpeter, as a procedure for arriving at political decisions by means of ‘competitive struggle for the people’s vote’:12 democracy is an institutional arrangement for selecting the political leadership by aggregating the preferences of the voters. By contrast, deliberative democracy is inspired by the regulative ideal of a universal consensus achieved through public reason and resembles a form of collective moral conversation on the founding principles of the political community. Within that theoretical framework, the judges have been thought of as being capable of acting as ‘political theorists’ that clarify and develop the fundamental choices of values of a given political community,13 and courts have been depicted as ‘guardian[s] of deliberative (p.33) democracy’ and ‘exemplar[s] of public reason’: institutions that enrich the deliberative quality of democracy by ‘call[ing] some issues from the battleground of power politics to the forum of principles’.14

Moreover, some deliberative democracy theorists have imagined that rights could work as a sort of lingua franca by means of which different countries and political cultures communicate with one another in the international arena as well as in the state’s constitutional setting:15 rights could be the engine and the object of global deliberative processes,16 the vehicle of ‘transnational judicial conversation’17 within an emerging ‘global community of courts’.18

Other political theorists, however, have criticized constitutionalization by holding that fundamental rights are nothing but the expression of particular political and cultural identities—namely a Western, secular, individualistic, male, and neoliberal identity19—or by holding that constitutionalization is the way certain political and economic élites react to the erosion in their popular support by delegating powers to the courts so that they can preserve their declining hegemony.20 Thus, there has been talk of an ‘age of right’21 and a ‘rights revolution’,22 but also of ‘legal globalism’,23 the ‘global expansion of judicial power’,24 ‘judicial democracy’,25 ‘juridical coup d’état’,26 and ‘insatiable rights’.27

A parallel debate is taking place in jurisprudence: a debate that must not be too sharply distinguished from theoretical-political reflection on the transnational process of rights constitutionalization. Here too judicial review and the protection of fundamental rights are viewed as either a dynamic that strengthens and completes democracy or that endangers democracy and evacuates it of any meaning. This disagreement is reflected in different approaches to the problems of legal interpretation. Which criteria ought to be followed in applying value-laden and open-ended legal provisions such as those establishing fundamental rights and constitutional principles? What should be the role of moral reasoning in adjudication? As far as the enforcement of values through legal interpretation is concerned, it is possible to distinguish between two positions that are premised on different assessments of the processes of rights’ constitutionalization, diffusion, and globalization. I propose to call them ‘neoconstitutionalism’ and ‘normative legal positivism’.

(p.34) It is important to bear in mind that authors that embrace legal positivism may from a theoretical or methodological viewpoint,28 without any contradiction, reject normative legal positivism and adopt a neoconstitutionalist stance with regard to the criteria to be followed in interpreting the law.29 The distinction between legal positivism and neoconstitutionalism has been made in various ways and the relation between the two is the object of a wide discussion in legal theory.30 It is hardly possible to find a set of theoretical assumptions that all neoconstitutionalists accept and define their position. Every characterization of neoconstitutionalism is bound to be conventional and approximate. The use of these labels is here justified only by their capability of grouping together certain stances on legal interpretation that present a strong ‘family resemblance’ one with the other.

Neoconstitutionalism gives a positive if not enthusiastic assessment of the tendencies to rights constitutionalization, diffusion, and internationalization that constitute the institutional premises of the debate on the enforcement of values via legal interpretation. According to this approach, the constitutional state represents an achievement that deserves to be safeguarded, where it is present, and to be spread and adopted, where it is lacking. The state should acknowledge the binding force of fundamental rights not only toward the public administration, as the old liberal state (liberaler Rechtsstaat) did, but also toward the democratically elected legislator. According to some, the binding force of fundamental rights should be acknowledged also toward private individuals, so that the private sphere might be sheltered against the ‘wild powers’31 of the market and the family. There are things no authority can ever do to people (Dworkin’s ‘rights as trumps’,32 Ferrajoli’s ‘sphere of the undecidable’,33 Garzón Valdés’s coto vedado34). Considerations related to parliament’s sovereignty, on the constitutional plane, and to state’s sovereignty, on the international plane, cannot defeat the duty to respect, protect, and fulfil human rights.

As far as legal interpretation is concerned, neoconstitutionalism maintains that fundamental rights’ positivization entails that judges cannot limit themselves to investigate the intentions of the legislator or to comply with the settled case law and social conventions. When the judge is called on to decide on the alleged violation of a fundamental right, formal arguments based on authority and on tradition are insufficient, and so are lexicographical surveys of linguistic usages, historiographical investigations of the intentions of long-time deceased people (the framers), and opinion polls of present-day citizens. On the contrary, it is necessary to engage in sound moral reasoning that takes seriously the rights of the individuals: enforcing fundamental rights implies a readiness at least to question the legitimacy of the existing laws and social morality. The judge will have, for instance, to (p.35) subordinate the policies of the legislator to the principles of public morality entrenched in the constitution, to set out the best theory of what the constitutional principles require in the case at hand, to evaluate the relative weight of the principles identified as relevant for the decision, and to strike a balance between the reasons for institutional continuity and the reasons for change. The constitution itself, by including fundamental rights and principles, requires the judge to engage in these kinds of deliberations.35

Legal positivism, as a descriptive theory of law, must obviously account for all the trends toward rights’ constitutionalization, diffusion, and internationalization that are the starting point of neoconstitutionalism. However, when they move from description to assessment, some legal positivists—certainly not all of them, and not even the majority—consider with caution or concern such trends and assume a stance that is, if not openly conservative,36 akin to what in literature is known as normative legal positivism, rule formalism, political or popular constitutionalism.37

The basic idea is that allowing the judges to expose (and impose) a theory of justice through legal interpretation means providing a non-representative and non-accountable élite with the power to determine the fundamental standards of civil life. But the standards of civil life cannot be abandoned to a normative theory of justice that the judges should guard and to which they would have privileged access; those standards are the ever-unstable outcome of a conflict of ideas, values, and interests in which every citizen should be allowed to participate on a footing of equal dignity and respect. In order for those standards to be consistent with the moral freedom and the political equality of all citizens, they must result from a political process that is open to a plurality of voices, and in which the judges should not have the last word.

With regard to legal interpretation in general and to the interpretation of fundamental rights declarations in particular, normative legal positivists prescribe the use of a variety of standards. They can deny the existence of any specificity of constitutional interpretation in respect of statutory interpretation and, based on that assumption, they can reject the theoretical premises of some neoconstitutionalist theories, such as the distinction between rules and principles, and reject their interpretive methods, such as recourse to extensive, evolutive, or consistent interpretation and recourse to balancing judgments.38 Alternatively, normative legal positivists can recommend fidelity to the intentions of the framers or (p.36) to the original public meaning of the text,39 or they can recommend deference toward the will of the current legislator, therefore self-restraint and respect for the constitutional interpretations reflecting a general consensus of the fellow citizens or of their representatives.40

These directives are obviously not equivalent one with the other. The will of the framers might not correspond to the constitutional interpretations of the current legislator; originalism and textualism do not necessarily imply self-restraint and respect for the margin of appreciation of other authorities. Nonetheless, all these directives coincide in assuming the possibility of a tension between judicial review and democracy or, in the case of the conservative criticism, a tension between judicial review, on the one side, and legal certainty and social and institutional stability, on the other. Normative legal positivism looks with some concern at such a tension and therefore does not recommend the judges to decide according to their best moral judgment. As the responsibility for the decision must not lie on the moral reasoning of the judge, legal positivism goes in search of criteria external to the consciousness of the adjudicator—such as the letter and spirit of the law, the will of the framers, the will of present-day legislator, the social morality—on the basis of which to justify the enforcement (or non-enforcement) of rights and of other value-imbued legal provisions.

4. Noble dreams and nightmares

No matter how we want to conceive the ‘success’ of neoconstitutionalism and legal positivism as normative theories of adjudication—as an effective rights protection or as the realization of a certain idea of democracy—that success cannot but depend on the legal, political, and social situation in which those theories happen to operate; a variety of conditions external to the theories, which the theories do not control directly, affect the possibility of achieving their objectives.

If we assume different background conditions, we can imagine opposite extreme outcomes of the two theories—let us call them the ‘noble dream’ and the ‘nightmare’ scenarios41—and maintain that for the interpreter the choice between neoconstitutionalism and normative legal positivism necessarily depends not only on the intrinsic desirability of their dreams and undesirability of their nightmares, but also on their plausibility and probability in the given situation. If the noble dream of neoconstitutionalism (or of legal positivism) seems to be, in a particular context, totally fantastic and unrealizable, and its nightmare seems to be a real possibility that must be avoided, then legal positivism (or neoconstitutionalism) will be preferable for prudential, pragmatic reasons, that is, for reasons other than the principled considerations internal to the theories and explicitly formulated by the theories (such as, for instance, some conception of authority, rights, democracy, the constitution, the role of the judiciary, and so on).

(p.37) With an effort of synthesis and trying to do justice both to legal positivism and to neoconstitutionalism, I think that the noble dream and the nightmare of the two theories can be rendered in the following way.

(i)  The noble dream of neoconstitutionalism is that the judicial application of fundamental rights and constitutional principles is not, at least not necessarily or in most cases, irrational, unfounded, and unpredictable; it is not the expression of the subjective preferences of the judge, or of judges as a group. On the contrary, the judicial ‘enforcement of values’ might represent the best possible approximation either to an objective morality that in principle can be known by an impartial observer, such as the judge, or to a social morality widely shared by reasonable people like the judges.

According to the noble dream, through the legal process and the gradual development of the case law it is possible to do justice to the parties in the objectively right way, or at least in a socially acceptable way. Moreover, it is possible not only to protect individuals’ rights, but also to enrich the democratic debate making it more participatory and inclusive. Social and political movements and civil society associations can make use of the language of rights not only as a means of political claims, but also as vehicle of legal claims: through public interest litigation, the legal process, and the system of courts can be channels of political participation. Arguments that otherwise would not receive adequate consideration, or that would not even reach the public sphere, are publicly expressed by the parties to the legal proceedings and are carefully pondered by a personally disinterested judge. The courts and the legal scholarship engage in an ongoing debate on the developments of constitutional adjudication, and in that way they constitute a forum of normative reflection and political deliberation that is parallel to, different from but not worse than, that of party politics. The process of common reflection on constitutional interpretation taking place within the legal community complements representative democracy. It introduces new normative contents that deserve to be taken into account, opens policy-making to minority interests that otherwise would be excluded, corrects the legislative process when its outcomes are defective, and prevents the risk that liberticidal and tyrannical laws determine the self-destruction of democracy.

(ii) The noble dream of normative legal positivism is that it is possible to have a political regime that, by distinguishing jurisdiction and legislation, bestows the former to a judiciary that is professional, independent, politically non-accountable, and yet respectful of the prerogatives of the other branches of government. Moreover, the legislative power can be entrusted to a democratic political process that is consistent with the equal moral dignity of the citizens, that is, with their equal right to make their voice be heard and to count in the adoption of collective decisions. According to the noble dream of legal positivism, the best chances for the fulfilment and the development of rights are not to be found in an idealized image of legal reasoning and constitutional courts, but lie in the resources of the ordinary legislative process and of a civil society that is lively and capable of organizing itself politically. Rights claims are neither the description of the objective morality nor of a widely accepted social morality; they are the expression of conflicts between specific interests and views. Such conflicts can receive an adequate mediation through the legislative process and the democratic policy-making, without being entrusted to the care of a non-representative and not democratically accountable aristocracy of the robe. In a pluralist society, the application of rights and other value-laden legal provisions cannot be objective and generally shared; disagreement is inevitable42 as the law is not, and cannot (p.38) be, a substitute for politics.43 In order for political decisions to be regarded as legitimate, we need to establish procedures that allow the citizens to participate in politics on a roughly equal basis. Legitimacy cannot depend on the substantive justice of political decisions, but on the fact that political decisions are the outcome of procedures that rest on political equality, and on the fact that political decisions are open to contestation and easily modifiable by means of the ordinary legislative process. There is no way of preventing democracies making mistakes from time to time, but the free competition between political parties is the best way for managing and at the same time guaranteeing the pluralism of contemporary societies.

From the debate on constitutionalization and legal interpretation, it is also possible to extract the nightmares of legal positivism and neoconstitutionalism, that is, the scenarios of extreme failure of the two theories.

(iii)  The nightmare of neoconstitutionalism is obviously some variation of ‘government by judiciary’,44 the ‘jurisdictional state’,45 and the dictatorship of a ‘judicial oligarchy’46 or ‘guardian bureaucracy’47 practicing an immoral, unpredictable, and antidemocratic ‘Kadi justice’.48

The judicial application of fundamental rights and other open-ended constitutional provisions might reveal itself as arbitrary and unacceptable from the viewpoint of critical morality (an immoral justice). Alternatively, it might reveal itself unstable and surprising, when it is inconsistent with the social morality expressed in the legal precedents, in the legislative decisions, and in the ethical convictions widely accepted in the community (an unpredictable justice). Finally, the judicial application of fundamental rights might reveal itself the predictable but unilateral expression of the personal convictions of the judges, that is, of the sectional social morality of a professional group or of a specific court of justice (an antidemocratic justice).

In the neoconstitutionalist nightmare, a politically non-accountable authority establishes in an almost definitive way what is right and wrong relying on its own moral appreciation of the controversy. By voicing their private morality, or the social morality of their professional group, the judges of the nightmare pretend to rule not only on what is legal or illegal, but also on what is morally acceptable or inacceptable, politically possible or illegitimate. Moreover, the diktats of the hierocratic community of the constitution’s interpreters do not enrich the public debate but, on the contrary, they deprive democratic politics of any salient content: the space of politics is reduced to that of the administration of the existing system within the confines of the legal principles entrenched in the constitution and interpreted by the courts.

In one possible version of the nightmare, politics reacts to the hegemonic claims of the judiciary in a way that endangers the fundamental principles of the constitutional state and the rule of law. For instance, judgments provoke popular or ‘populist’ hostility toward the courts and politics succeeds in delegitimizing the judiciary, curtailing its independence, and effectively controlling it; or the recipients of the ruling do not comply with them and the (p.39) judgments remain unimplemented and unenforced, and this causes legal uncertainty and a crisis of legitimacy of the political system.

(iv)  In the scenario of the legal positivist nightmare, the application of fundamental rights by the judges and the officials functions as a well-oiled machine that carries into inexorable execution the perverse or senseless decisions of a tyrannical or unintelligible power, in the presence of a civil society that is alienated, passivized, indifferent, or complicit. As a virtuous and active civil society is lacking, the inclusive capacity of democratic politics proves to be illusory: in the nightmare of legal positivism civil society is depoliticized and silent, fragmented and resigned, or even actively evil, illiberal, and racist, mobilized for the conquest of power.

Faced with the nightmare of legal positivism, those who care for the protection of individuals’ rights cannot rely only on the democratic resources of the legislative process. The legislator might be unresponsive or openly hostile to the interests of ‘discrete and insular minorities’49 that are not capable of forming effective political coalitions and that therefore cannot make their voice heard in the legislative process. The legislator might be prisoner of a moral majority that aims to force everybody to follow its precepts and that has no interest in the rights of people involved in private choices with public consequences (abortion, same-sex marriage, in-vitro fertilization, etc.). The legislator might react to a real or perceived threat to national security with exceptional public order measures that jeopardize democratic politics. Finally, the legislator might simply have forgotten to enact an appropriate provision, to make a necessary exception, or to eliminate an unjustified difference in treatment.

In all these cases, as well as in others,50 when the legislator is the expression of the arrogance of the powerful, or the expression of the fear by the powerless, or when it is only incapable of foreseeing the consequences of its laws, the nightmare of legal positivism tells us that anybody would like to have a ‘judge in Berlin’, reasonable and courageous, willing to do the right thing and ‘enforce values’.

5. Enforcement of values and institutional context

The hyperbolic nature of the noble dreams and nightmares presented in the preceding paragraph is evident. The point is that the construction of these extreme scenarios shows that the choice between neoconstitutionalism and normative legal positivism—between enforcement of values and strict constructionism, between Wertjurisprudenz and Gesetzespositivismus—does not depend only on the strength of the principled arguments in their support; the degree of desirability of the noble dream and undesirability of the nightmare is not the only relevant consideration. The choice between the two theories depends also on the greater or lesser plausibility of these scenarios in the context where the interpretive choice takes place. Prudential considerations related to the trust we have, or do not have, in the interpreters of the constitutions and to the foreseeable consequences on the social and institutional settings are therefore relevant for the choice of the criteria to be adopted in (p.40) interpreting the constitution and the rights declarations. Any choice presupposes an institutional context on the background and can be justified only once that context has been analysed and assessed. There might well be a space for a ‘pure’ theory of legal interpretation, that is, for a theory that does not take into account the context, but the normative claims of such a theory cannot but be very limited.

Apart from the greater or lesser plausibility of the noble dreams and nightmares, it seems that in order to take a stance on the controversy between neoconstitutionalism and normative legal positivism, we must first assess the level of development of the processes of constitutionalization, rights’ diffusion and internationalization that represent the institutional premises of the debate on the enforcement of values through legal interpretation. As already stated, neoconstitutionalism is based on a positive assessment of such processes and normative legal positivism on a negative assessment, or at least a sceptical one, which minimizes their importance for legal theory.

Moreover, the choice on the interpretive criteria depends on social, political, and institutional factors such as the following:

(i)  The social composition and ideological orientation of the judiciary. Who are the judges that might enforce values through legal interpretation? Is it possible to recognize some coherent policy pursued by the judiciary, or by specific courts, and if so, how should we characterize and assess it? Do judges deserve trust? Moreover, which kind of trust do they ask for? Are they public officials legitimized through legal expertise demanding independence from the political power, or are they public communication professionals, voices in the democratic debate, claiming to be representative of civil society, responsive to its needs, and morally responsible?

(ii)  The distribution of opportunities of access to justice. Who can go before the judge? Which interests succeed in obtaining an adequate consideration and protection in the legal process? Is there any group being systematically disadvantaged? Is the court system sufficiently accessible and effective for those who have an interest in the enforcement of the law?

(iii)  The position of the judiciary vis-à-vis the authorities whose acts are subject to its control and who should implement its rulings. To whom does the judge address? Is the target a democratically elected legislator, another national or international judge, a state or group of states, or an international or supranational bureaucracy? How likely is it for the judgment to encounter compliance problems and refusal to enforcement?

(iv)  The stability and integration of the reference political system. Where and when does the interpretation take place? In a (unitary or federal) state or in a (international or supranational) organization? In a period of normal politics51 or in a revolutionary situation, in an emergency, or during a constitutional transition?

(v)  Finally, any stance on the normative criteria for legal interpretation should take into account not only the political and factual context but also the legal context: the normative framework in which interpretation takes place, the object and the standards of the judicial review, its procedures and warranties. In other words, what is the judge interpreting? Which rules and principles belong to the legal order where the judge is placed and that the judge applies? Is the judge interpreting the Bill of Rights or the Italian Fascist Labour Charter, a democratic constitution, or the constitution of an authoritarian state? Is the judge interpreting an international treaty like the ECHR, or the treaties establishing an international or supranational organization like the EU? Which act is subject to judicial review: the (p.41) legislation enacted by a democratically elected legislator, the agreements reached by states through international negotiation and cooperation, or the regulations adopted by some international or supranational body? Are the principles that the judge must apply the civil, political, and social rights of twentieth-century democratic constitutionalism, or are they the basic principles of the common market, such as the freedom of movement of capital, people, goods and services, equality as fair and undistorted competition, mutual recognition of national regulations, etc?

The debate on the enforcement of values through legal interpretation makes sense only against the background of the legal, political, and social context where it takes place. It is certainly true that legal theory can rely on an implicit analysis and assessment of the context, allocate such analysis and assessment to other disciplines, and avoid thematizing them every time. But the analysis and assessment are nonetheless necessary, because we cannot say anything meaningful on the proper criteria of legal interpretation if we have not first clarified who the judge interpreting the law is, who he is addressing, upon the request of whom, which powers he possesses, what he is interpreting, and under which circumstances.

6. Conclusion

Therefore, we find ourselves, even if at our own cost, in the best condition to realise how extremely changeable legal ideologies are, as their progressive or reactionary orientation depends on the historical circumstances in which they are endorsed and on the parties that embrace them.

Norberto Bobbio52

The conclusion of the preceding paragraph is that the only meaningful answer that legal theory can provide to questions such as ‘How should we interpret the constitution and the declarations of rights? Which are the best criteria for legal interpretation? What should be the role of explicit moral reasoning in adjudication?’ is ‘It depends’. It depends on the degree of development of the rights’ constitutionalization, diffusion, and globalization processes, it depends on the way we evaluate the chances and the risks of judicial review in the present context, it depends on who interprets what and under which circumstances. This is a sceptical conclusion on the normative power of a general theory of law but—one might object—it is also an obvious thesis, one that no one would reject and that is therefore lacking in significant effects on the method and subject of legal theory.

It is certainly true that that thesis has already been advanced in the theory of legal interpretation.53 On closer inspection, it is only a specific application to the field of legal interpretation of the proposition, characteristic of legal realism, according to which a purely normative consideration of legal and jurisprudential issues is insufficient and must be complemented by the assessment of additional factors. These factors are different from the rules and principles directly involved in the legal or jurisprudential issue at hand, as they pertain to the context of the legal decision.

However, although it does not claim to be entirely original, the proposition that it does not make sense to accept or reject a normative theory without having first analysed and (p.42) assessed the institutional context where interpretation takes place, is neither obvious because non-controversial, not is it irrelevant. On the contrary, that proposition (i) has been explicitly rejected by one leading legal theorist, (ii) has been implicitly rejected or ignored by many others, and (iii) has important methodological consequences for the theory of constitutional interpretation.

(i)  A conscious opponent of the idea that institutional context matters is Ronald Dworkin.

True enough, Dworkin did not pretend to elaborate a general theory of law in the sense of a theory that is applicable to every legal system. As opposed to ‘semantic’ theories that assume the existence of a social consensus on the facts that make legal propositions true, Dworkin’s theory is ‘interpretive […] of a particular stage of a historically developing practice […] Interpretive theories are by their nature addressed to a particular legal culture, generally the culture to which their authors belong.’54 This has led some theorists to speak about ‘particular jurisprudence’.55

However, nobody could ever deny that in Dworkin’s theory, no matter how general or particular it is, the analysis of the institutional context does not play any role. To illustrate his theory of law as integrity, Dworkin relies on the thought experiment of Justice Hercules, which explicitly disregards not only the institutional context, but also the limited intellectual capabilities that the judge can invest in the decision (‘an imaginary judge of superhuman intellectual power and patience who accepts law as integrity’56). Dworkin refuses to consider the issues of normative theory of interpretation as institutional issues for the (questionable) reason that his theory of the moral reading is applicable to the legislator as well as to the courts because it addresses anybody who wants to interpret the constitution in the best way. Therefore, according to Dworkin, the issues of constitutional interpretation should not be approached by taking into consideration the possible consequences of the general adoption of a certain interpretive method.57

(ii)  An implicit opponent is Scott Shapiro. In fact, he urges the interpreters to respect the ‘economy of trust’ inscribed or presupposed by the law, but does not take into consideration the possibility that political and social factors, external to the law, suggest the adoption of interpretive methods not envisaged by the Plane.58 Moreover, following a line of argument that is quite common in English-speaking analytical jurisprudence, he holds that the debates in legal philosophy, such as the debate on the nature of law, ‘can make a profound practical difference’, because the solution to interpretive disagreements might depend on them: ‘there is often no way to resolve specific disagreements about the law without first resolving disagreements about the nature of law in general’.59

We should reject this line of argument. The justification of theoretical reflection cannot be found in its practical consequences because such consequences are—and for the foregoing reasons should be—quite limited.

(iii)  The thesis here advanced does not only have the obvious consequence that there must be stringent limitations to what a general theory of legal interpretation can usefully (p.43) say on the normative plane. The thesis also has a more interesting consequence concerning the way we should approach legal interpretation ‘in action’ before the courts.

I would express the point in the following way. Obviously it is possible, and it might often be interesting and useful as well, to criticize the arguments put forward by courts in judgments, and it is possible to do that from a variety of different perspectives: from a legal technical perspective, from the perspective of a moral criticism to the case law, from that of the economic analysis of law, from the viewpoint of the internal logical consistency of the reasoning, etc. However, it does not make sense to assume that the judge must express all the arguments, or even the best arguments, in support of the decision. I am not referring here to the ‘unmentionable’ reasons, that is, the motives exercising a causal influence on the judge’s thought process that cannot be openly stated without rendering illegitimate the decision (e.g., what the judge had for breakfast, his dislike for the parties to the proceeding, etc.). Neither do I refer only to the extra-legal reasons which, although in the abstract relevant for someone, cannot be expressed without the legal community deeming them as inappropriate and devoid of justificatory force in the context of the legal process (e.g., the teachings of the Catholic Church, the programme of a political party, the defence of national identity, the moral progress of mankind, etc.). Rather, I am referring to all those reasons that, although relevant for the decision and endowed with justificatory force in the legal process (e.g., the need to protect fundamental rights or to fulfil the democratic principle), could be appropriate to omit because of the institutional consequences that their use might have.

In a great variety of institutional contexts, there can be several good reasons for saying less than one could do; it can be reasonable for judgments to be brief, poor in theory, lacking candour, assertive and dogmatic, not much persuasive, and irrelevant for the general public debate. If the assessment of the institutional context and of the trust that it is appropriate (not) to have in the constitution’s interpreters suggest the acceptance of normative legal positivism, legal argumentation should not be subject to excessive and unrealistic expectations.

In those cases where the assessment of the context of interpretation suggests the opportunity of adopting the views of normative legal positivism, a judgment can be good—although this might seem paradoxical—not just despite its being badly written, but because of it. A judgment can be good because it is written by a judge that does not speak in first person, does not aim to express the true moral values or to be representative of civil society, and does not claim to advance the best justification of the legal system in which he works and of the legal principles that he applies; a judge that is aware of the risk that a diffuse, widely argumentative, solemn, or inspired legal reasoning—a reasoning aimed at persuading or at teaching—can irritate the political system and provoke unsuccessful attempts at emulation or at contrast in the legal community.60


(1) B Brown and N MacCormick, ‘Law, Philosophy of’ in E Craig (ed) Routledge Encyclopedia of Philosophy (Routledge 1998), http://www.rep.routledge.com/articles/law-philosophy-of/v-1/,

(2) In the context of EU legal scholarship, the expression usually refers to enforcement of the ‘values’ of Article 2 TEU. As Kochenov rightly notes elsewhere in this volume, the wording is unfortunate: Article 2 TEU ‘values’ are in fact binding legal principles, that is, ‘laws’ as opposed to values.

(3) T Ginsburg, ‘The Global Spread of Constitutional Review’ in GA Caldeira et al. (eds), The Oxford Handbook of Law and Politics (OUP 2008) 81–98; AS Sweet and J Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 73.

(4) E-W Böckenförde, Staat, Verfassung, Demokratie (Suhrkamp 1991) 116,

(5) A Marmor, Interpretation and Legal Theory (2nd edn, Hart 2005) 141.

(6) In the extensive literature on balancing and proportionality, recent contributions include K Möller, The Global Model of Constitutional Rights (OUP 2012); M Cohen-Eliya and I Porat, Proportionality and Constitutional Culture (CUP 2013); J Bomhoff, Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (CUP 2013); L Lazarus et al. (eds), Reasoning Rights: Comparative Judicial Engagement (Hart 2014); G Huscroft et al. (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP 2014).

(7) This remark can be found in some early criticisms of the constitutionalization process, such as that of C Schmitt, Die Tyrannei der Werte (3rd edn, Duncker & Humblot 2011). On ‘rights inflation’ see J Gerards, ‘The Prism of Fundamental Rights’ (2012) 8 European Constitutional Law Review 173, at 178 ff.; M Kumm, ‘Internationale Handelsgesellschaft, Nold and the New Human Rights Paradigm’ in M Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart 2010) 106–18.

(8) A Peters, ‘Membership in the Global Constitutional Community’ in J Klabbers et al. (eds), The Constitutionalization of Intenational Law (OUP 2009) 167

(9) See e.g. ICJ, Reservations to the Genocide Convention (Advisory Opinion) 1951 ICJ Reports 15 at 23; European Commission of Human Rights, Austria v Italy (Pfunder’s case) App No 788/60 11 January 1961 (1962) 4 Yearbook 116 at 138; Case C-26/62, Van Gend en Loos (1963) ECR 1 at 12. For further references, see F Mégret, ‘The Nature of Obligations’ in D Moeckli et al. (eds), International Human Rights Law (2nd edn, OUP 2014) 96–118; E Bjorge, The Evolutionary Interpretation of Treaties (OUP 2014).

(10) On constitutional pluralism and adjudication, see e.g. G Martinico, The Tangled Complexity of the EU Constitutional Process: The Frustrating Knot of Europe (Routledge 2012); P Popelier et al. (eds), The Role of Constitutional Courts in Multilevel Governance (Intersentia 2012).

(11) AS Sweet, ‘Constitutional Dialogues: Protecting Human Rights in France, Germany, Italy and Spain’ in SJ Kenney et al. (eds), Constitutional Dialogues in Comparative Perspective (Macmillan 1999) 8–41.

(12) J Schumpeter, Capitalism, Socialism and Democracy, (3rd edn, HarperCollins 2008) 269.

(13) D Robertson, The Judge as a Political Theorist: Contemporary Constitutional Review (Princeton University Press 2010).

(14) R Dworkin, A Matter of Principle (Harvard University Press 1985) 71.

(15) M Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press 2001) 95 (‘the shared vocabulary from which our arguments can begin’); J Tasioulas, ‘The Moral Reality of Human Rights’ in Th Pogge (ed), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (OUP 2007) 75–101, p. 75 (‘an ethical lingua franca’).

(16) A Buchanan, ‘Human Rights and the Legitimacy of the International Legal Order’ (2008) 14 Legal Theory 39,

(17) Ch McCrudden, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford Journal of Legal Studies 499.

(18) A-M Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard Journal of International Law 191.

(19) R Cruft et al., ‘The Philosophical Foundations of Human Rights. An Overview’ in Philosophical Foundations of Human Rights (OUP 2015) 31

(20) R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2004).

(21) N Bobbio, L’età dei diritti (Einaudi 1990).

(22) ChR Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago University Press 1998).

(23) D Zolo, ‘The Rule of Law: A Critical Reappraisal’ in P Costa and D Zolo (eds), The Rule of Law. History, Theory and Criticism (Springer 2007) 54.

(24) CN Tate and T Vallinder (eds), The Global Expansion of Judicial Power (New York University Press 1995).

(25) C Guarnieri and P Pederzoli, La democrazia giudiziaria (Il Mulino 1997).

(26) AS Sweet, ‘The Juridical Coup d’État and the Problem of Authority’ (2007) 8 German Law Journal 915.

(27) A Pintore, ‘Insatiable Rights’ (2001) 14 International Journal for the Semiotics of Law 277.

(28) N Bobbio, Giusnaturalismo e positivismo giuridico (Laterza 2011) 87

(29) J Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in L Alexander (ed), Constitutionalism: Philosophical Foundations (CUP 1998) 152

(30) For an introduction to the debate, see T Mazzarese (ed), Neocostituzionalismo e tutela (sovra)nazionale dei diritti (Giappichelli 2002); M Carbonell (ed), Neoconstitucionalismo(s) (Trotta 2003); S Pozzolo (ed), Neconstitucionalismo, derecho y derechos (Palestra 2011).

(31) L Ferrajoli, Poteri selvaggi. La crisi della democrazia italiana (Laterza 2011).

(32) R Dworkin, Taking Rights Seriously (Harvard University Press 1977).

(33) L Ferrajoli, Principia iuris (Laterza 2007), vol. 1, 819passim

(34) EG Valdés, ‘Rapresentación y democracia’ (1989) 6 Doxa 143.

(35) See e.g. Ferrajoli (n 33) vol. 1, pp. 39 ff., on the ‘critical and normative’ role assumed by legal knowledge as consequence of constitutionalization. The same idea is shared by critics of legal positivism, such as R Dworkin, Freedom’s Law (Harvard University Press 1996) 7 ff., and G Zagrebelsky, Il diritto mite. Legge diritti giustizia (Einaudi 1992) 163 ff.; by inclusive legal positivists, such as W Waluchow, Inclusive Legal Pluralism (OUP 1994) 113 ff.; as well as by exclusive legal positivists, such as J Raz, The Authority of Law: Essays on Law and Morality (2nd edn, OUP 2009) 49, and Between Authority and Interpretation (OUP 2009) 196, arguing that when the constitution uses moral concepts, it empowers the judges to develop and modify the law on the basis of moral considerations, which nonetheless continue to be external to the law.

(36) Apart from Carl Schmitt’s Die Tyrannei der Werte, in the German legal scholarship, see Böckenförde (n 4) 53 ff., and 115 ff.

(37) JAG Griffith, ‘The Political Constitution’ (1979) 42 Modern Law Review 1; J Waldron, Law and Disagreement (OUP 1999); LD Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (OUP 2004); A Tomkins, Our Republican Constitution (Hart 2005); M Tushnet, Weak Courts, Strong Rights (Princeton University Press 2008); R Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (CUP 2007). For a critical discussion, see M Goldoni, ‘Political constitutionalism and the value of constitution making’ (2014) 27 Ratio Juris 387. For similar views, see A Pintore, I diritti della democrazia (Laterza 2003); JC Bayón, ‘Derechos, democracia y constitución’ (2000) 1 Discusiones 65, http://www.cervantesvirtual.com/obra/derechos-democracia-y-constitucion, accessed 13 October 2016.

(38) R Guastini, Distinguendo. Studi di teoria e metateoria del diritto (Giappichelli 1996) 115 ff. and 237 ff.; E Forsthoff, Rechtsstaat im Wandel (Kohlhammer 1964) 147–75.

(39) G Huscroft and BW Miller (eds), The Challenge of Originalism: Theories of Constitutional Interpretation (CUP 2011);The Failed Promise of Originalism

(40) On public opinion’s consensus and the legitimacy of judicial review, see B Friedman, The Will of the People: How Public Opinion Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus, and Giroux 2009). On the margin of appreciation doctrine, see J Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 80; G Itzcovich, ‘One, None and One Hundred Thousand Margins of Appreciations. Notes on the Lautsi Case’ (2013) 13 Human Rights Law Review 287.

(41) HLA Hart, Essays in Jurisprudence (OUP 1983) 123–44,

(42) Waldron (n 37) 105 ff., p. 163.

(43) Griffith (n 37) 16.

(44) LB Boudin, ‘Government by Judiciary’ (1911) 26 Political Science Quarterly 238, 267; E Lambert, Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis (Giard 1921).

(45) C Schmitt, Legality and Legitimacy (trans. J Seitzer, Duke University Press 2004) 7,

(46) GE Roe, Our Judicial Oligarchy (Huebsch 1912).

(47) FM Marx, The Administrative State (University of Chicago Press 1957) 55.

(48) M Weber, Economy and Society, ed G Roth and C Wittich (University of California Press 1978) 823,passimKadi Justiz

(49) United States v Carolene Products CoJH Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980) 75

(50) Another nightmare scenario of normative legal positivism is evoked by PP Portinaro, ‘Beyond the Rule of Law: Judges’ Tyranny or Lawyers’ Anarchy?’ in P Costa and D Zolo (n 23) 353 ff., 363: rather than the danger of judicial hegemony (the ‘judges’ tyranny’), contemporary democracy face the threat of the ‘lawyers’ anarchy’: ‘the supremacy of lawyers’ partisan and mercenary “expertocracies” that take strategic advantage of the opportunities and resources of a litigation society’.

(51) B Ackerman, We The People: Foundations (Harvard University Press 1991) 230

(52) Bobbio (n 28) 5.

(53) e.g. M Troper, Pour une théorie juridique de l’État (Presses Universitaires de France 1994) 291, arguing that the constraints on constitutional interpretation are not normative but empirical and depend on the institutional context; CR Sunstein and A Vermeule, ‘Interpretation and Institutions’ (2003) 101 Michigan Law Review 885, criticizing several theories of legal interpretation for their indifference to institutional structure and constraints; SJ Shapiro, Legality (Harvard University Press 2011) 331 ff., holding that the attitudes of trust and distrust presupposed by the law are central to the choice of interpretive methodology.

(54) R Dworkin, Law’s Empire (Hart 1986) 102.

(55) B Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (OUP 2007) 162,The Concept of Law

(56) Dworkin (n 54) 239. See also Dworkin (n 54) 381.

(57) Dworkin (n 35) 34. The reason is questionable as it takes for granted that it is desirable that different institutions and individuals (the legislator, the courts, the public officials, and the citizens) adopt the same normative theory of constitutional interpretation. If the judges were generally incapable or evil, as is the case in the neoconstitutionalist nightmare, we would rather be inclined to advise against the adoption of Dworkin’s moral reading.

(58) Shapiro

(59) ibid,

(60) For instance, institutional considerations might suggest a constitutional court such as the Bundesverfassungsgericht to contain the wide-ranging theoretical inspiration of some of its decisions on European integration (Maastricht-Urteil, BVerfGE 89, 155, of 12 October 1993; Lissabon-Urteil, BVerfGE 123, 267, of 30 June 2009) and to limit itself to reviewing compliance with the procedural requirements set out in Article 23 German Basic Law for the changes to the European Treaties (in particular, the enactment of a constitutional amendment). The method of the ‘treatise-judgments’ might in fact be imitated by courts that are even more cautious, if not hostile, toward European integration than the Bundesverfassungsgericht, and this might create a domino effect and disrupt the political process in a hardly resolvable way (as opposed to politicians, constitutional courts cannot sit around a table and have a direct negotiation, and cannot vote and decide by majority). Once that the ‘treatise-judgments’, each one formulating its guidelines of constitutional policy, have multiplied all over the twenty-eight Member States of the EU, the process of negotiation and ratification, which is not easy, would become even more complicated and uncertain.