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The Splendors and Miseries of Constitutional Reasoning in Times of Global Crisis: A Critical Look from the Realist Perspectives of Semiotics

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Abstract

The European Stability Mechanism (ESM) is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Delivering much anticipated rulings in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology.

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Notes

  1. Providing a reference to Narits’ paper, we can’t omit the fact that his account of constitituonal values is based on translating the methodology of Alexy’s analysis of constitutional rights (1)-A strong criticism of Alexy’s methodolgy came from Habermas, who claimed that rights have ‘greater justificatory force’ than ‘values’; ‘weighing’ of ‘values’ ruins a‘firewall’, which insulates rights from interference for policy reasons [10, pp 259ff]. Alexy’s dissertation was responsible for encouraging Habermas to extend discourse theory to law. Continuing Habermas’ argument, we can describe this insulating firewall as a border or (using the biological metaphor) a membrane of the semiosphere, which allows filtering and transformative processing of the external to the internal [24, p. 210].

  2. Kevelson’s model of aesthetic function owns its existence to Mukařovský’s aesthetics, in which new value emerges as aesthetic energy to pervade the entire network of social systems and move it further toward its goals.

  3. Values, rights and duties not only do not belong to the sensible world, the world of facts, but it is also of the very essence of our legal notions that rights and duties are not identical with any facts [29].

  4. It is interesting to note that the view of Scandinavian Realism on magic power of language is shared by linguists: language has a quasi-magical power of bringing about the changes in the world.

  5. On a side-note, it is important to stress that the position of Scandinavian realists appears to be at odd with Frege’s theory of denotation. In opposition to logical formalism, Frege maintained that we have to throw aside signs that neither have nor are meant to refer to real objects.

  6. Available online: http://www.riigikohus.ee/?id=1353.

  7. Here, we take as granted Barthes’ definition of ‘connotations’: connotations meanings that are suggested or implied by the sign. In other words, connotation refers to implicit secondary meaning of a sign impiosed by a specific culture.

  8. Further we refer to philosophical pillars of German constitutional theory as it is discussed in Robert Alexy [1].

  9. It is obvious that the belonging of individual to a particular semiotic group is always relational to the factors that determine his or her worldviews (age, sex, political beliefs, etc.).

  10. Bernard Jackson: “Though such a semiotic group certainly exists, the restriction of permissible justificatory argument to explicit legal reasoning is part of the message which justificatory discourse conveys” [15, p. 42].

  11. The Preamble to the current Constitution of Estonia states: With unwavering faith and a steadfast will to strengthen and develop the state, which is established on the inextinguishable right of the people of Estonia to national self-determination and which was proclaimed on 24 February 1918, which is founded on liberty, justice and law, which shall protect internal and external peace, and is a pledge to present and future generations for their social progress and welfare, which shall guarantee the preservation of the Estonian nation, language and culture through the ages, the people of Estonia, on the basis of § 1 of the Constitution which entered into force in 1938, and by a referendum held on 28 June 1992, adopted the following Constitution.

  12. BVerfG, 2 BvR 1390/12 vom 12.9.2012, Absatz-Nr. (1–319). See http://www.bverfg.de/entscheidungen/rs20120912_2bvr139012en.html. The full ruling on the complaints is expected in early 2013. However, since the law can now be finalized, and as an international treaty may be difficult to reverse, many expect the final ruling to be along the same lines.

  13. BVerfG, vol.no., 22, p. 296.

  14. “By virtue of its approval of stability aids, the Bundestag exercises the influence demanded by the Constitution and is a participant in decisions on the amount, conditionality and length of stability aids. It therefore determines the most important conditions for future successful demands for capital disbursements under Article 9, Para. 2 ESMS”.

  15. In the words of one Russian poststructuralist, Mikhail Iampolski, in the absence of a market, in USSR ‘the fetishization of culture replaces that of money and exchange value’ [25, p. 70].

  16. Article 125(1) Treaty on the Functioning of the European Union (the FEU) stipulates: “The Union shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of any Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project”.

  17. The comments were made at the EU's highest court by John Rogers, Senior Counsel, who is representing Mr. Pringle. Mr. Rogers argued: "In trying to defend the compatibility of the ESM with the EU treaties, the intervening member states and institutions have had to engage in mischaracterisation and distortion in the confusion of form and substance and in legal and conceptual contradictions."

  18. The text of decision is available online at http://curia.europa.eu/juris/liste.jsf?num=C-370/12.

  19. The Supreme Court of Estonia ruled on the ESM itself,27 the Bundesverfassungsgericht reviewed the ratification statutes introducing the ESM into the German legal order adopted by the German legislature, whilst the procedure in the Irish courts was initiated against both the European Council decision as well as the ratification statute of the ESMT itself, the European Communities (Amendment) Act 2012.

  20. As expressed in the Treaty of Lisbon: juman dignity, freedom, democracy, equality, the rule of law and the respect for human rights.

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Acknowledgments

The research was supported by Archimedes Foundation (Estonia), Kristjan Jäägu Scholar Mobility programm (16-3.3/607), DoRa programm (ESF DoRa 30.1-9.3/423), and Kristjan Jäägu Scholar Mobility programm (16-3.3/265).

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    Vadim Verenich

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Verenich, V. The Splendors and Miseries of Constitutional Reasoning in Times of Global Crisis: A Critical Look from the Realist Perspectives of Semiotics. Int J Semiot Law 27, 687–711 (2014). https://doi.org/10.1007/s11196-013-9352-7

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