The ‘Lisbon Urteil’ and the Fast Food Culture
The outcome was not a surprise. ‘Yes’ to the LisbonTreaty with some (arguably trivial) tinkering with internalGerman procedures. The naïve might have expected somethingelse: after all, some of the statements of that same court inits highly problematic Maastricht decision could have been construedas pointing towards a different, negative, result. But in itsinternationally-related case law, the German ConstitutionalCourt has a well-earned reputation of the Dog that Barks butdoes not Bite. There would be, as the more jaded court watchersamong us confidently predicted, lengthy ‘humming and hawing;’some high sounding and biting criticism of certain democraticdeficiencies of the Union and its Institutions; heavy breathingabout the German Court’s constitutional responsibilities andimportant guardianship role. But in what we may now call theregular ‘Karlsruhe Miracle’, the pig would finallybe pronounced Kosher – as indeed turned out to be thecase. Despite its history of self-important ‘so long as…’ style rhetoric, of all the Member State courts andtribunals, it would not be the German Constitutional Court whichwould take it upon itself to derail the process of Europeanintegration in so important a case, no matter how inimical thatprocess might be to its understanding (whether right or wrong)of democratic and civic propriety. (The dog might well bitein the pending Mangold case – and if it does the feelingof many is that it will be an injury the ECJ gratuitously broughtupon itself and the Union.)
What of the content of the decision? Courts, especially supremecourts, do have institutional identities into which their transientlyserving members mould themselves. But we should not overdo thisform of reification. The quality of reasoning and the ostensibleand implicit Weltanschauung of any given case are a reflectionof the actual individuals who make up the chamber which handsdown the decision. In this particular case, the compositionof the deciding ‘Senate’ is as expected -some truly outstanding jurists, one or two about whose intellectualsuitability for such high judicial office one might wonder,and the rest with more than adequate competence – as isthe case with most of our European high courts. So no surpriseshere either: a mixed bag. A decision with lights and shadows,some conflicting tendencies, some painful displays of shallownessand lack of political imagination, and some veritable soaringpassages and profound reflection.
What is striking in examining the first slew of hurried reactionswas the degree to which political and ideological sensibilitiesdetermined the assessment of the judgment. The ‘Europeanfederalists’ (to use a convenient if misleading vulgarism)saw the outcome as a victory but there was no shortage of outrageat, say, the alleged disrespect of the German Court towardsthe European Parliament and more generally its failure to embracea robust European outlook. What was missing from that cornerof the ring was any acknowledgement that the European institutionaland decisional structure and process continue to suffer fromvery serious democratic deficiencies which Lisbon does not addressand that at a minimum the German Court tried to identify theseand grapple with them far more seriously than did most Parliamentswho ratified Lisbon with Ceaucescian majorities. From thosein the other corner who sang the praises of this bulwark ofdemocracy, there was mostly a lamentable failure to appreciatethe limited view of polity and politics put on display by theGerman Court, its failure to use Europe as a means for rethinkingin a serious way some aspects of German identity, and the trulyprovincial, parochial and inward perspective underlying manyaspects of the reasoning. But for the syntax, one could at timesbelieve one was reading a decision of the Supreme Court of theUnited States. In America I call this the ‘World Series’syndrome: the championship game of a sport (baseball) comprisingteams coming exclusively from North America and yet being calledthe World Series. It is the spirit of the-way-we-do-it-is-the-only-way-we-know-and-hence-the-only-way-to-do-it.There was quite a bit of this in the German decision too.
All in all, one learnt from most of those comments more aboutthe sensibilities of the commentator than about the decisionof the German Constitutional Court itself. The real significanceof the Lisbon Urteil will have to wait for much more carefulanalysis than that to which we have been treated so far.
If the outcome was no surprise and the ostensible quality ofthe reasoning ordinary, the hoopla surrounding the case wasand still is altogether extraordinary. What explains it? Inpart it was the carefully calibrated and stage-managed timingof the decision. In part it flowed from the Positional Prestigeof the Court, which is independent of the intrinsic qualityof the decision: A ‘No’ issued by the ConstitutionalCourt of a major Member State is, however poor the reasoning,more consequential than a ‘No’ coming from a minorone. It is, after all, easier to twist an Irish arm than a Germanarm. In part it is the Hallow Effect which attaches to certainhallowed institutions and which shapes our very perception ofquality. (If it is, say, OUP, it has to be an important book- right?) And in large part, it was that stroke of PRgenius – there is some genius associated with the decisionafter all – whereby an extensive translation into Englishwas released together with the judgment. (We hope other highcourts will set aside linguistic pride and emulate the GermanConstitutional Court at least on that issue.) But all of theabove, necessary conditions perhaps, would not have quite producedthat impact without the medium. Here was as veritable and poignantan example of the manner in which the medium – cyberspace- not only provides a remarkable conduit for communicationbut constitutes and shapes the nature and even content of discourseitself. The impact on the world of scholarship and on scholarshipitself is huge, even transformative, with both negative andpositive implications.
The writing was already on the wall with the advent of the personalcomputer and word processing. The mechanics of ‘producing’an article were considerably eased and improved. Many of ourreaders will not even know of a world of typewriters and realscissors and glue with which one used to ‘cut and paste’.Or of the sinking heart of having to add a single footnote whichwould require retyping an entire manuscript. The ease of editingmeans that one can and normally does edit more extensively todaythan in the past. From the vantage point of an Editor of EJILthroughout its 20 year life – EJIL began in the typewriterera! – I can attest to the increased technical polishof the submissions we receive, surely an advantage. But I canalso attest to an increase in the volume of submissions chez-nousand everywhere else, which is only partially accounted for bythe growing prestige of EJIL. It is also the result of a moreefficient ‘production process’ of writing an article.I cannot say that there has been an increase in quality. Thisis not hearkening back to the Good Ol’ Days – farfrom it. It is simply a claim about a low correlation betweenquantity and quality.
The emergence of the internet and the maturing of cyberspacehave accentuated to a huge degree the phenomenon begun by wordprocessing. With what effect? I limit myself to the narrow vantagepoint of scholarly writing and publication seen from the deskof a Journal editor. Some of the effect is clearly positive- the traditional guardians of the gates to the shrinesof Academia such as the Editors-in-Chief of distinguished lawjournals have lost a lot of that very gateway function and power.Digital access, though the blogosphere, Working Paper seriesand other forms of digital publishing, has become ubiquitous,less elitist and democratic. What receives prominence is morereader determined than Editor determined. And of course, eventraditional publishing can reach many more readers at cheaperprices through on-line access.
Some of it is negative – the traditional guardians ofthe gates to the shrines of Academia such as the Editors-in-Chiefof distinguished law journals have lost a lot of that functionand power. Access is ubiquitous, less elitist and self-generated.(No, the repetition is intended).
And, paradoxically, that very ubiquity and ease of cyberspacepublishing is restoring the traditional gateway function andpower. The bounty that Google showers on us is at times so abundantone risks being swept away by the downpour – salvationlying in the safe haven of a familiar portal or journal theselection process of which we trust to serve up only that whichmerits attention and preserves our scarcest resource, time.Indeed, the very ease of self-publication coupled with the notoriousindeterminacy of scholarly ‘quality’ in legal writing- much more akin to ‘art’ than to ‘science’- valorizes even more publication legitimated by externalreferents of ‘quality’. As far as we can measurethese things, both as regards the rate of submissions and thescope of readership, EJIL continues to grow both despite andbecause of cyberspace.
But it is not only in relation to ‘access’ to publishingspace where the new media is reshaping our world. It is alsothe immediacy of access, the unlimited space (no numbers ofpages and words and characters to negotiate with an Editor)and the broadness of the broadcasting range which is so differentto the world of yesteryear. If it had not become so much thenorm, it would be astonishing: within days (!) of the publicationof the Lisbon Urteil, lengthy comments and analyses were availableto anyone who cared to look. Within weeks they numbered in thedozens and more. There is in my view one huge virtue -the broadness of the conversation which is generated. Journalpublishing is a Spectator Sport: someone writes, everyone elsereads. There is more instant engagement on the internet, a lotmore. It is like a conference with limitless participants andno time constraints for asking questions, raising objections,responding. But often one is left with a bad taste in one’smouth and not only because frequently one has the impressionthat everyone is so busy writing and self-publishing that notime is left for reading.
Let us stick with the culinary metaphor. I take cooking extremelyseriously – my manuscript Kosher, but really good! isdeveloping nicely and hopefully will be published before toolong. Good cooking involves, apart from talent, creativity andgood ingredients, also careful planning, meticulous preparation,and, more often than not, patient execution. A bit like seriouswriting. Likewise, that same well-cooked meal needs to be consumedslowly, with care, attention and patience if one is to detectall the flavours, sense all aromas, experience all texturesand savour them all.
At times I feel that certain aspects of cyber publishing bringto scholarship the worst of the Fast Food culture. The preparationis hurried and often formulaic – getting out there first,getting out there fast being considered a virtue. The lack ofdiscipline resulting from unlimited space and no external referentsoften produces cholesterol-laden, poorly written and poorlyedited pieces. And the Fast Food culture also affects consumption.Hurriedly written pieces are hurriedly read, and hurriedly respondedto. And that ‘broad conversation’ has its dark sidetoo. ‘If you stuff yourself with a hamburger, you willhave no appetite for the good meal waiting at home’ isa phrase that has its equivalent in most cultures. The cyberglutproduces subject fatigue. Eventually there will appear sometruly thoughtful pieces about this case. But who will actuallyturn to them after the initial glut or rather gluttony?
The lawyers working on the Lisbon case toiled for many months.The Court itself deliberated and drafted for many more. It ishard to explain at any serious level the rush to judgment, therush to pronounce oneself in public, often categorically, onthe Judgment, when it is so obvious that from so many of thepieces that have appeared, that even talented authors, ostensiblycommitted to La Vita Contemplativa, had little time to thinkand reflect. McDonalds rather than Steak Diane. The apt commentof the Wisest of all Men in Ecclesiastes 1:2 comes to mind (Vanitasvanitatum omnia vanitas).
In this Issue
We continue to celebrate our Anniversary volume in this thirdissue with a significant article addressing the Responsibility-to-Protectnorm by Anne Peters in ‘Humanity as the A and of Sovereignty’.The political and normative difficulties implicit in any engagementwith this norm coupled with the very real implications for humansuffering associated with its demise render Peters’ pivotalargument an easy selection for this issue’s Special AnniversaryArticle. Lest one article on this exciting topic leaves youwanting, we have included four responses to Peters as well asher excellent rejoinder.
In addition to our Special Anniversary Article, this issue includesan interesting argument from Ba ak Çali at UniversityCollege London concerning the commensurability of Dworkin’sinterpretivism to the study of international law. This issuealso introduces an occasional series, a Critical Review of InternationalGovernance, with a timely piece by Francis Maupain on the InternationalLabour Organization and the 2008 Declaration on Social Justicefor a Fair Globalization. This articles meshes well with ourAnniversary Symposium on Globalization.
This Anniversary Symposium represents a critical grouping ofsome very thoughtful scholarship on international economic law.We decided to avoid the Globalization and its Discontents meta-approachand see the ‘devil’ through the details. The line-upof symposium authors ensures an interesting diversity of approachesand sensibilities. It includes Andrew Lang and Joanne Scott,Isabel Feichtner, Veerle Heyvaert, Sungjoon Cho, Francesco Francioni,Jürgen Kurtz and Valentina Vadi.
Two ‘EJIL: Debates’ in this issue. The first bringsto a close our treatment of Kadi. Gráinne de Búrca,André Nollkaemper and Iris Canor reply to Pasquale DeSena and Maria Chiara Vitucci’s article ‘The EuropeanCourts and the Security Council: Between DédoublementFonctionnel and Balancing of Values’, found in Issue 1of this Volume, and the authors respond with a rejoinder. Thesecond EJIL: Debate! produces some hard talk between Tony D’Amatoand Jean d’Aspremont on the topic of Soft Law in InternationalLaw.
Last but not least. Man doth not live by bread alone (Deut VIII:3)– We invite you to turn to The Last Page where you willfind a poem, Delhi to Chandighar, by noted professor of InternationalLaw, Gregory Shaffer. Other poems by international lawyers orrelated to international law will be published in future issueson The Last