Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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2. By requiring national courts, esp. lower courts, to question and if necessary to adjust the
outcomes of domestic legislation, the ECJ has not just influenced the interpretative legal
cultures (see Dann 2005, Bogdandy 2003, Heutger 2003 and 2004, Lefevre 2004) of the
legal systems but also the role and functioning of national judiciaries, their embedding in
the legal hierarchy as well as their involvement in political processes. Identifying tendencies
of “judicial empowerment” regarding the lower courts, in general further “judicialisation
of politics” on the one hand and some kind of “Politisation” of law and of the judiciary
on the other hand are but different ways of capturing a phenomenon one could describe as a
transformation of the status of judiciaries. Within the European legal system(s) judiciaries
are much more taking part in institutional engineering – which implies an altogether altered
allocation of functions between judiciary and legislature, a different relation between constitutional
and lower courts, and consequently a rise of political and social responsibility.
Both aspects, the adoption of a “politicised” role of being a “European” judge and the adaptation
of discursive techniques effectuating legal integration, are seen to be crucial for the
functioning of the European Union. At the same time, regarding the functioning of the legal
systems of the new member states, these features are rather absent, so that the question is
whether there might be a structural incompatibility. The potential incompatibilities can be
regarded at three different levels, in relation to an interpretative, an institutional and a legal
divide. Firstly, at the bottom line of what might be called legal culture, it has been marked
that the legal tradition of most of the new member states do not see interpretation as an important
part of judicial work, at least not in terms of creative interpretation (see Kühn 2004
and 2005). The general understanding of interpretation is predominantly a positivist, literalist
and textualist reading of law, oriented towards mechanical “subsuming”, and in this respect
“irreconcilably” in conflict with the European interpretative scheme 8 . Compared with
the practices of the European Courts four differences can be depicted: Teleological and purposive
aspects are rather neglected; there are hardly recourses to abstract legal principles
and to reasons in the light of principles (rule of law, proportionality etc.); precedents and
case law is not systematically seen as a binding and/or persuading source of law 9 ; and fi-
8
It has several times been pointed out that both, legal education and legal practices rely on positivist, simplistic
and a parochial Savigny kind of reasoning, in the sphere of constitutional and administrative law as well as
in the sphere of private law (see for the latter aspect Manko 2005).
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This is – among others – an aspect that helps understanding the conflicts between constitutional and lower
courts, see for instance Kühn 2004, Albi 2004 and Capeta 2006).