European Legal Method in Denmark and Sweden—Using Social Science Theory and Methodology to Describe the Implementation of EU Law

• Published date: 01 May 2013
• Author: Eva Edwardsson,Helena Wockelberg
• DOI: http://doi.org/10.1111/eulj.12028
• Date: 01 May 2013

European Legal Method in Denmark and

Sweden—Using Social Science Theory and

Methodology to Describe the

Implementation of EU Law

Eva Edwardsson* and Helena Wockelberg*

Abstract: This article presents data from a study in which national bureaucrats working

in the fields of taxation and food law in Sweden and Denmark are asked which legal

sources and methods of interpretation they use when implementing EU law. The purpose

is to contribute to the discussion about European legal method by using social science

methodology. National agencies and authorities in the fields of taxation and food law

face a ‘multilayered’ or ‘multiprincipal’ reality in which there is room for policy choices.

The answers given by the interviewees speak of a plurality of legal sources, a situation

where bureaucrats are becoming reluctant lawmakers instructing others on how EU law

is to be applied and where bureaucrats find it necessary to found their decisions on what

colleagues within the authority or from other Member States have said about how EU

law should be applied.

I European Legal Method as Invoked by National Authorities

Legal interpretation has been characterised as an art (‘Die Auslegung ist eine

Kunst. . .’).1What happens if it is not Carl Friedrich von Savigny saying this, but

rather a bureaucrat at a national authority who is in desperate need of guidance on

how to interpret EU law when exercising public power against an individual?

What the law is and how it comes into existence are issues that need to be dissected

and analysed continually. At present, there is an ongoing debate on European

legal method.2Legal methods generally concern sources of law and methods of

* Eva Edwardsson, Associate Professor in Public Law, Department of Law, Uppsala University, Uppsala,

Sweden; Helena Wockelberg, PhD, Senior Lecturer in Political Science, Department of Government,

Uppsala University, Uppsala, Sweden. We are grateful for the helpful comments on early versions of this

article delivered by our colleagues at Uppsala University, as well as for the efforts of our contacts inside

Swedish and Danish authorities, and for the generous attitude of our respondents.

1This quote from F. C. von Savigny, System des heutigen Römisches Recht (1853), was taken from

J. Samuelsson, Tolkningslärans gåta (The Riddle of Legal Interpretation)(Iustus Förlag, 2011).

2See for example U. Neergaard, R. Nielsen and L. Roseberry (eds), European Legal Method—Paradoxes

and Revitalisation (DJØF Publishing, 2011); R. Nielsen, ‘Legal Realism and EU law’, in H. Koch,

K. Hagel-Sørensen, U. Haltern and J. H. H. Weiler (eds), Europe. The New Legal Realism. Essays in

Honour of Hjalte Rasmussen (DJØF Publishing, 2010), at 545; M. Hesselink, ‘European Legal Method?

On European Private Law and Scientific Method’, (2009) 15 European Law Journal 20.

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European Law Journal, Vol. 19, No. 3, May 2013, pp. 364–381.

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interpretation. It has been suggested that the ripening of EU law and the mutual

embeddedness of EU and national law makes it both more possible and more neces-

sary to explain and identify the most important elements of legal methods used when

legal actors apply EU law.3Another reason for analysing European legal method is

that the application of the multilayered, pluralistic EU law presumably leaves room

for policy choices. Our suggestion is that the possibility of policy choices, eg within

bureaucracies at the national level, also creates a need for transparency in the process

of interpretation of EU law. Without transparency, there is a risk that policy choices

easily can be disguised as ‘law’.

The aims of this study are to describe legal methods as used by national bureaucrats

in implementation processes and to ask whether these are compatible with basic

norms of rule of law, such as legal certainty. Legal certainty is a concept with a

number of different aspects. Frändberg has suggested three conditions for legal cer-

tainty in its more narrow meaning of legal predictability: that rules are clear and

precise, rules are easily accessible and that legal institutions uphold and follow the

rules.4It is however obvious to anyone that legal rules are not clear and precise, either

in EU law or in national law. Instead, there is a constant need for interpretation,

which brings us back to the question of legal methods. Our suggestion is that if a

coherent European legal method can be identified and analysed—and thus making

methods of interpretation by the application of EU law more transparent—legal

certainty would consequently be enhanced.

While ‘method’ means everything to a political scientist, this is not the case for

lawyers. Most lawyers give quite vague descriptions of the legal methods they use,

European or not. The vagueness of legal methods can naturally be criticised. Joerges

has referred to an outside perspective on law, where the legal system is perceived of as

a ‘black box’.5It is inevitable that decisions of legal interpretation include matters of

discretion that cannot be governed by any procedural or substantive rule of law. For

that reason, a certain degree of vagueness must be accepted.6

Even so, we would like to argue that the relaxed position that most lawyers show

vis-à-vis questions of legal methods are based on a number of implicit assumptions,

such as:

1. A sufficient number of legal actors actually applying the law are lawyers;

2. Even if the law is applied mainly by actors who are not lawyers, this is not a

problem as long as a sufficient number of decisions by public authorities

subsequently are scrutinised within a process of judicial review;

3. There is an interested legislator with the authority to regulate or re-regulate

legal matters; and

4. Legal sources exist in the form of written texts, which means that they are

accessible.

3U. Neergaard, R. Nielsen and L. Roseberry (eds), European Legal Method 7.

4Å. Frändberg, ‘Begreppet rättsstat’, in F. Sterzel (ed), Rättsstaten—rätt, politik, moral (Iustus förlag,

1996), at 21.

5C. Joerges, ‘Taking Law Seriously: On Political Science and the Role of Law in the Process of European

Integration’, (1996) 2 European Law Journal 105.

6J. Bengoetxea, ‘Legal Reasoning and the Hermeneutic Turn in the Law—Remarks on the European

Court of Justice’, in U. Neergaard, R. Nielsen and L. Roseberry (eds), The Role of Courts in Developing

a European Social Model—Theoretical and Methodological Perspectives (DJØF Publishing, 2010), at 277.

May 2013 European Legal Method in Denmark and Sweden

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