Stith, Richard

English

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Valparaiso University
ValpoScholar
Law Faculty Publications Law Faculty Presentations and Publications
10-18-2012
Thoughts on the German Constitutional Court
Decision on the ESM
Richard Stith
Valparaiso University, richard.stith@valpo.edu
Follow this and additional works at: https://scholar.valpo.edu/law_fac_pubs
Part of the Comparative and Foreign Law Commons, and the International Law Commons
This Editorial is brought to you for free and open access by the Law Faculty Presentations and Publications at ValpoScholar. It has been accepted for
inclusion in Law Faculty Publications by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff
member at scholar@valpo.edu.
Recommended Citation
Richard Stith, Thoughts on the German Constitutional Court Decision on the ESM, Blog of the International Journal of
Constitutional Law (Oct. 18, 2012), http://www.iconnectblog.com/2012/10/thoughts-on-the-german-constitutional-court-
decision-on-the-esm/
iconnectblog.com
http://www.iconnectblog.com/2012/10/thoughts-on-the-german-constitutional-court-decision-on-the-esm/
Thoughts on the German Constitutional CourtDecision on the ESM
–Richard St ith, Valparaiso University
The German Federal Const itut ional Court ’s decision of  September 12, 2012, has been welcomed
by some as signaling yet another polit ical retreat, yet  another ”Son of  Solange II”. But what should
bring joy to the heart  of  every American comparat ive law teacher is that , whether retreat or
advance, every new “red line” drawn by the FCC is and must be a contradict ion within EU law, and
therefore a wonderful subject  for the intractable classroom debate that is the hallmark of  our
peculiar U.S. form of legal educat ion.
Perhaps it  will be said that this is nothing new. American Legal Realism and its Crit ical Legal Theory
heirs have long taught that  law is inevitably self -contradictory. But this Realist  content ion is usually
just  a matter of  ant i-authoritarian polit ical commitment.
No body of  law can bind where it  is internally inconsistent.  A judge cannot obey contradictory
commands.  So ant i-authoritarians seek to destroy the power of  law by claiming that it  contradicts
itself . Judges, by contrast , insofar as they are commit ted to following the law must assume that
there is a hidden unity to law, that there is a way to resolve every relevant contradict ion in order to
reach a holding. If  a judge holds the law to be binding, she must think it  unif ied.  If  a Realist  chooses
not to be bound by the law, neither will he believe there to be hidden ways it  binds itself  together.
The sense of  obligat ion is thus the ground of  legal (and moral) reason. The desire for liberat ion is
the ground of  skept icism.  But neither side can disprove the other. The Realist  simply commits
himself  to the proposit ion that there are contradict ions in every apparent unity, even in those
unit ies not yet  proposed. The conscient ious judge simply commits herself  to the proposit ion that
there is a unity behind every apparent contradict ion, even those not yet  discovered. The great
French myst ic thinker Simone Weil puts the matter better than any Judge Hercules:
Correlat ions of  contraries are like a ladder.  Each of  them raises us to a higher level where resides
the connexion which unif ies the contraries; unt il we reach a spot where we have to think of  the
contraries together, but where we are denied access to the level at  which they are linked together. 
This forms the last  rung of  the ladder.  Once arrived there, we can climb no further; we have only
to look up, wait  and love. And God descends.  [Gateway to God 64 (1974)].
The Realist  simply refuses to wait , or even to start  climbing.
In the European Union, however, in the very heart land of  the Legal Science tradit ion, there is no
f irst  rung upon which to step and climb, just  a stark ant inomy. Despite the venerable Van Gend en
Loos and Costa teachings of  the European Court  of  Just ice, compacts among const itut ionally
limited states cannot logically generate direct ly ef fect ive, supreme, and open-ended substant ive or
interpret ive powers. Only a compact among unlimited, fully autonomous states could do so. Nemo
dat quod non habet. By insist ing otherwise, the ECJ creates a never ending, legally intractable
const itut ional crisis. There is not and cannot be a single “scient if ic” answer to the quest ion of
whether the EU has exceeded its powers. There is only the answer in European law and the
answer in member state law and the Realist  predict ion of  the likely polit ical choice by the court  in
quest ion (e.g., ECJ or FCC). And now, upon this sand, some propose to raise an ever-heavier
construct ion.
Guy Verhofstadt urges everyone to avoid such problems of  “a federat ion of  nat ion states” by
conceiving the EU as a “federal union of  European cit izens.” European Voice, 13-19 September
2012, p. 1. But are Germany’s cit izens themselves fully autonomous? Could they alienate their
rights to life or to liberty? Would not the Drittwirkung principle of  the German Grundgesetz legally
nullify the surrender of  one’s vote, for example, even for good reciprocal value received?
Perhaps, however, the insuperable contradict ions at  the base of  European law are a good thing.
Should we wish for a unitary Legal Science to govern a whole cont inent – especially if  we cannot
imagine how such a legally unitary State could be democrat ic? [Cf. the work of  Sant iago de
Compostela const itut ional law professor Antonio-Carlos Pereira Menaut on post-modern, post-
state, deeply pluralist  polit ies.] And what do these European quandaries tell us about our pact
among limited American states, or (if  you will) among cit izens of  our states who possessed
“unalienable rights… to life, liberty, and the pursuit  of  happiness”?   Are those American
“departamentalists” and “popular const itut ionalists” who seek to revive similar ant inomies
underlying U.S. law also doing a good thing?
If  there be professorial paradise on earth in the United States of  America, it  is this, it  is this, it  is
this.


Thoughts on the German Constitutional Court Decision on the ESM

Valparaiso University

Valparaiso UniversityValpoScholarLaw Faculty Publications Law Faculty Presentations and Publications10-18-2012Thoughts on the German Constitutional CourtDecision on the ESMRichard StithValparaiso University, richard.stith@valpo.eduFollow this and additional works at: https://scholar.valpo.edu/law_fac_pubsPart of the Comparative and Foreign Law Commons, and the International Law CommonsThis Editorial is brought to you for free and open access by the Law Faculty Presentations and Publications at ValpoScholar. It has been accepted forinclusion in Law Faculty Publications by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staffmember at scholar@valpo.edu.Recommended CitationRichard Stith, Thoughts on the German Constitutional Court Decision on the ESM, Blog of the International Journal ofConstitutional Law (Oct. 18, 2012), http://www.iconnectblog.com/2012/10/thoughts-on-the-german-constitutional-court-decision-on-the-esm/iconnectblog.comhttp://www.iconnectblog.com/2012/10/thoughts-on-the-german-constitutional-court-decision-on-the-esm/Thoughts on the German Constitutional CourtDecision on the ESM–Richard St ith, Valparaiso UniversityThe German Federal Const itut ional Court ’s decision of  September 12, 2012, has been welcomedby some as signaling yet another polit ical retreat, yet  another ”Son of  Solange II”. But what shouldbring joy to the heart  of  every American comparat ive law teacher is that , whether retreat oradvance, every new “red line” drawn by the FCC is and must be a contradict ion within EU law, andtherefore a wonderful subject  for the intractable classroom debate that is the hallmark of  ourpeculiar U.S. form of legal educat ion.Perhaps it  will be said that this is nothing new. American Legal Realism and its Crit ical Legal Theoryheirs have long taught that  law is inevitably self -contradictory. But this Realist  content ion is usuallyjust  a matter of  ant i-authoritarian polit ical commitment.No body of  law can bind where it  is internally inconsistent.  A judge cannot obey contradictorycommands.  So ant i-authoritarians seek to destroy the power of  law by claiming that it  contradictsitself . Judges, by contrast , insofar as they are commit ted to following the law must assume thatthere is a hidden unity to law, that there is a way to resolve every relevant contradict ion in order toreach a holding. If  a judge holds the law to be binding, she must think it  unif ied.  If  a Realist  choosesnot to be bound by the law, neither will he believe there to be hidden ways it  binds itself  together.The sense of  obligat ion is thus the ground of  legal (and moral) reason. The desire for liberat ion isthe ground of  skept icism.  But neither side can disprove the other. The Realist  simply commitshimself  to the proposit ion that there are contradict ions in every apparent unity, even in thoseunit ies not yet  proposed. The conscient ious judge simply commits herself  to the proposit ion thatthere is a unity behind every apparent contradict ion, even those not yet  discovered. The greatFrench myst ic thinker Simone Weil puts the matter better than any Judge Hercules:Correlat ions of  contraries are like a ladder.  Each of  them raises us to a higher level where residesthe connexion which unif ies the contraries; unt il we reach a spot where we have to think of  thecontraries together, but where we are denied access to the level at  which they are linked together. This forms the last  rung of  the ladder.  Once arrived there, we can climb no further; we have onlyto look up, wait  and love. And God descends.  [Gateway to God 64 (1974)].The Realist  simply refuses to wait , or even to start  climbing.In the European Union, however, in the very heart land of  the Legal Science tradit ion, there is nof irst  rung upon which to step and climb, just  a stark ant inomy. Despite the venerable Van Gend enLoos and Costa teachings of  the European Court  of  Just ice, compacts among const itut ionallylimited states cannot logically generate direct ly ef fect ive, supreme, and open-ended substant ive orinterpret ive powers. Only a compact among unlimited, fully autonomous states could do so. Nemodat quod non habet. By insist ing otherwise, the ECJ creates a never ending, legally intractableconst itut ional crisis. There is not and cannot be a single “scient if ic” answer to the quest ion ofwhether the EU has exceeded its powers. There is only the answer in European law and theanswer in member state law and the Realist  predict ion of  the likely polit ical choice by the court  inquest ion (e.g., ECJ or FCC). And now, upon this sand, some propose to raise an ever-heavierconstruct ion.Guy Verhofstadt urges everyone to avoid such problems of  “a federat ion of  nat ion states” byconceiving the EU as a “federal union of  European cit izens.” European Voice, 13-19 September2012, p. 1. But are Germany’s cit izens themselves fully autonomous? Could they alienate theirrights to life or to liberty? Would not the Drittwirkung principle of  the German Grundgesetz legallynullify the surrender of  one’s vote, for example, even for good reciprocal value received?Perhaps, however, the insuperable contradict ions at  the base of  European law are a good thing.Should we wish for a unitary Legal Science to govern a whole cont inent – especially if  we cannotimagine how such a legally unitary State could be democrat ic? [Cf. the work of  Sant iago deCompostela const itut ional law professor Antonio-Carlos Pereira Menaut on post-modern, post-state, deeply pluralist  polit ies.] And what do these European quandaries tell us about our pactamong limited American states, or (if  you will) among cit izens of  our states who possessed“unalienable rights… to life, liberty, and the pursuit  of  happiness”?   Are those American“departamentalists” and “popular const itut ionalists” who seek to revive similar ant inomiesunderlying U.S. law also doing a good thing?If  there be professorial paradise on earth in the United States of  America, it  is this, it  is this, it  isthis.

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Thoughts on the German Constitutional Court Decision on the ESM

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