Levels of Generality in the Legal Reasoning of the European Court of Justice

• DOI: http://doi.org/10.1111/j.1468-0386.2008.00440.x
• Published date: 01 November 2008
• Date: 01 November 2008
• Author: Gerard Conway

Levels of Generality in the

Legal Reasoning of the European

Court of Justice

Gerard Conway*

Abstract: The level of generality or of abstraction used to describe a precedent, a right, or

the legislative intent behind a statutory provision or constituent purpose behind a consti-

tutional provision can have a decisive impact on the outcome of a case. Characterising it

in narrow terms has the effect of reducing the scope of decision of a judgment; conversely,

a broader characterisation provides more leeway for a judge in a case to encompass its

facts within the precedent, right or purpose in issue. The issue raised by the level of

generality problem is the extent to which courts have a discretion or freedom of manoeuvre

as to the level of generality they decide upon, and thus whether generality and abstraction

are manipulable in the hands of judges and are not really predetermined by the legal

sources in question or an established judicial method of interpretation. Uncontrolled

judicial discretion of this kind is problematic from the point of view of the rule of law and

democracy, especially when adjudication concerns constitutional provisions, the equiva-

lent in the EU being interpretation by the European Court of Justice (ECJ) of the

EU Treaties; reversal of ECJ interpretation through Treaty amendment is particularly

diff‌icult to achieve because it requires unanimous coordination by the Member States.

This article examines two alternative ways of determining the correct or appropriate

level of generality issue in ECJ interpetation, coherence or the legal traditions of the

Member States, and argues in favour of the latter as a less subjective method. Application

of the two alternative approaches is tested in two areas of EU law, state liability and

criminal law.

* BA (Limerick), Barrister-at-Law (King’s Inns), M Juris (Uppsala), PhD-Candidate (Belfast), City Solici-

tors’ Educational Trust Lecturer in Public Law, Brunel University. This article was presented at the Sixth

International Workshop for Young Scholars (WISH): Evolution of the Community Courts, University

College Dublin, Ireland, November 2007, and I am grateful to the organisers and participants for

questions and constructive dicussion. I am also grateful to the following people in particular: Professor

Francis Snyder, LSE and Université d’Aix-Marseille III, for helpful comments on an earlier draft; to my

PhD supervisors at Queen’s University Belfast, Dr Rory O’Connell and Dr Dimitrios Doukas, for

discussion of the topic; to staff at the Law Library of the University of Uppsala, for their helpfulness while

I visited when researching this topic; and to the staff of the Garrigues Chair in Global Law, University of

Navarra, for facilitating my research on this topic while I was a visiting scholar.

European Law Journal, Vol. 14, No. 6, November 2008, pp. 787–805.

© 2008 Brunel University

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

I Introduction

The level of generality or of abstraction used to describe a precedent, a right, or the

legislative intent behind a statutory provision or constituent purpose behind a consti-

tutional provision can have a decisive impact on the outcome of a case. Characterising

it in narrow terms has the effect of reducing the scope of decision of a judgment;

conversely, a broader characterisation provides more leeway for a judge in a case to

encompass its facts within the precedent, right or purpose in issue. This level-of-

generality question has been debated to a greater degree in US constitutional law

scholarship than in the context of the European Court of Justice (ECJ) or academic

comment on it. The issue raised by the level of generality problem is the extent to which

courts have a discretion or freedom of manoeuvre as to the level of generality they

decide upon, and thus whether generality and abstraction are manipulable in the hands

of judges and are not really predetermined by the legal sources in question or an

established judicial method of interpretation.

Drawing on a leading article on the topic by Lawrence Tribe and Michael Dorf in

1990,1this article analyses two competing approaches to the level of generality

problem, in the context of ECJ case-law in the areas of state liability and criminal law.2

Tribe and Dorf put the issue thus: ‘...atwhat level of generality should the Court

describe the right previously protected and the right currently claimed? The more

abstractly one states the already-protected right, the more likely it becomes that the

claimed right will fall within its protection’.3The level-of-generality problem arises

usually when a textual reading is incomplete or does not provide answers (or it will still

arise if the text is not considered dispositive even when its meaning is clear)—which is

typically the case when interpretation relates to competing abstract values, as is often

the case in constitutional law.4If the level of generality is manipulable and not subject

to any rule-bound method, it is problematic with respect to rule of law values of

certainty and objectivity.5As Julius Stone commented in the context of precedent: ‘If

we could wholly accept the idea that present and future decisions are determinable and

determined on the basis of stare decisis then indeed we would f‌inally have attained the

dream of being under a government of laws and not of men’.6

And while arguably the insights of legal realism and critical legal studies7have

undeniably pointed out the f‌laws of a purely formalist understanding of legal reason-

ing, ‘...torecognise the limits of human objectivity does not require that we abandon

the effort to approximate those limits’8(objective is understood here in the sense of a

1L. T. Tribe and M. C. Dorf, ‘Levels of Generality in the Def‌inition of Rights’, (1990) 57 The University

of Chicago Law Review 1057 and by the same authors On Reading the Constitution (Harvard University

Press, 1991).

2Criminal law comes under the intergovernmental Third Pillar, where the Community institutions have in

general less competence relative to the Member States as compared to the First Pillar.

3Tribe and Dorf, op cit n1supra, at 1058.

4See O. Fiss, ‘Objectivity and Interpretation’, (1982) 34 Stanford Law Review 739.

5See generally B. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press,

2004), especially ch 9; M. Kramer, Objectivity and the Rule of Law (Cambridge University Press, 2007).

6J. Stone, ‘The Ratio of the Ratio Decidendi’, (1959) 22 Modern Law Review 597, at 599.

7See, eg ‘Note’, ‘‘Round and ‘Round the Bramble Bush: From Legal Realism to Critical Legal Scholar-

ship’, (1982) 95 Harvard Law Review 1669.

8Tribe and Dorf, op cit n1supra, at 1060.

European Law Journal Volume 14

© 2008 Brunel University

788 Journal compilation © 2008 Blackwell Publishing Ltd.