Ferrara last week; both city and university law faculty were host to the Annual Meeting of the European Law Institute over which I have the honor to preside. Over three hundred and fifty lawyers from most of Europe’s jurisdictions and beyond gathered to meet and debate projects and proposals aimed at concretely improving European law; ideas put forward and worked on by a membership representing the whole community of European lawyers: judges, practitioners and academics.
Of course, we met at a time when Europe and its legal structures are under challenge and question; besieged by the problems of globalisation, finance, immigration and, naturally, Brexit. What, one might reasonably ask, can a group of lawyers bring to the current crisis of confidence in Europe? The European Union is of course a legal structure par excellence, literally born out of a legal agreement, a treaty or now treaties between the various member states. In the days running up to our meeting, I had been reading Philippe Sands amazing book East West Street – On the Origins of Genocide and Crimes Against Humanity. The incredible story of lawyers, Lauterpacht and Lemkin, both having origins in the now Ukrainian city of Lviv. Sands’ grandfather also came from the same city, so this is an engaging family history and also a very personal history of the development of these ideas within public international law.
During our ELI conference we had an internal discussion about how political our institute should be in taking on issues of the day, especially at a time like the present. I then found it both amusing and apposite to read the following passage when Lemkin was campaigning at an international law conference in England during the Nuremburg trials to get genocide included or recognised,
During introductory remarks ‘ Lord Porter, a judge and the chair of the conference…implored the lawyers present to be ‘practicable’ in their work and to ‘restrain their enthusiasm’ in dealing with the many challenges ahead. Unsuccessful advocacy was ‘apt to antagonise’, he reminded everyone present. This was British pragmatism of the kind that Lemkin abhorred. Lemkin ignored Lord Porter..
Whilst Lemkin may have been unsuccessful at the conference, both men have had their ideas accepted into international law and that did not happen just by writing books. They had in their different ways to enter into practice and into the political fray, even if in the background. This must be a lesson for our young institute. Of course, experts have had a difficult time during the referendum debate in the UK, their advice dismissed in, at times, a quite alarming manner. People told that reversing several decades of legal development is as easy a flicking a switch. That having entwined ourselves deeply with our neighbours we can suddenly pack everything back into a neat exclusive national box. No one doubts the need for a popular debate and decision-making but it should be an informed one. In this respect, I found it helpful to share the thoughts of that extraordinary Italian writer Umberto Eco who said, ‘it’s only publishers and some journalists who believe that people want simple things. People are tired of simple things. They want to be challenged.’ So now maybe the moment for experts, and for our Institute, as the real process starts.
The process of course arises from the crisis created by the UK referendum vote. In a thought provoking and analytical lecture from Marta Cartabia, Vice President of the Italian Constitutional Court, she delved into the meaning and possibilities of crisis, offering a view that it also presented an opportunity, a fresh starting point. She saw within this a definite space for the work of the ELI in taking forward European legal development. The same thoughts were again echoed during the subsequent address of Koen Lenaerts, President of the Court of Justice of the European Union. He indeed almost chided that the arrival of a functioning European Law Institute, informed by the experience of the American Law Institute, was almost overdue in terms of our continent’s legal evolution.
In addition, to congratulatory words for the work and future of the ELI, Lenaerts then went on to describe the comparative method used by the court in arriving at its decision. A method he emphasised as having been mandated by the Treaties and important in grounding court decisions in the national law of the member states. In other words, this is not, as some national media would have us believe, an external court applying some foreign law, this is our court carefully using, considering and balancing our own national laws in its work. He particularly emphasised the idea of ‘united in diversity’, but rather than as motto, a reality, albeit a tension alive, in the daily work of the court.
It has been the knowledge of this use and influence of national law that has worried many of us in relation to Brexit. What will happen to common law influence in Europe, and indeed civilian law influence in Britain? It is perhaps no surprise that the influential mediaeval city-states of Italy should have spawned the father of conflicts of laws, Bartolus, developing an open system of allowing the recognition and use of one another’s laws.
We need that spirit of openness now more than ever. In the city of Savonarola I could find no more appropriate postscript than his words, ‘Don’t be ashamed to learn from others.’