Metaphors and Identity Based Narrative in Constitutional Adjudication: When Judicial Dominance Matters

Oreste Pollicino

Bocconi University, Milan

As Gabor Halmai has shown very well, the Hungarian constitutional case law has revealed how a not truly independent (euphemism) Constitutional Court is capable of manipulating the notion of constitutional identity in order to distort its original meaning to align it with the views of the political majority in office.

This manipulation of constitutional identity by the Hungarian Constitutional Court does not represent an isolated case. More recently, in the constitutionality question (K 7/18) issued by the Prosecutor General (and Minister of Justice) to the Constitutional Court about the alleged unconstitutionality of Article 267 of the Treaty on the Functioning of the European Union (TFEU), it has been argued that the objective was to purposely resort to constitutional identity to confuse operations whose result is ‘judgments containing sentences that are specially “sculpted” for immediate political need.’

More generally, one of the features that is almost always present in the judicial narrative of illiberal democracies is the, constantly misleading, reference to constitutional identity to justify populist choices made by the government, often against European values.  

In this contribution, the main idea is to use metaphoric language to unveil the need for the most respected Western Constitutional Courts to face their ‘special responsibility’ when striking a balance between their task of guarding the fundamental values in their respective legal systems and the primacy of EU law.

Metaphorical language has not always been viewed with favour by legal scholars. For example, Justice Cardozo argued that ‘metaphors in law are to be narrowly watched, for starting as devices to liberate thought, [while often] they end often by enslaving it.’ (Berkey v. Third Avenue Railway, 244 N.Y. 84, 94, 155 N.E. 58, 61 (N.Y. 1926)).

It is of singular and paradoxica significance, by the way that, in condemning metaphors in this manner, Cardozo did so by recourse to a dual metaphor, namely the liberation of thought and its reduction to slavery).

Metaphors are not ornamental in the legal language; they are not simple stylistic and rhetorical contrivances but are rather unavoidable elements within the cognitive processes used to understand and represent practical aspects of reality.

Shifting from cognitive studies to European constitutional legal studies, the question thus becomes: which is the best metaphor to frame the current identity-based narrative that seems to characterise the actual season of (lack of) cooperative constitutionalism in Europe? To find the right metaphor, it should be recalled that metaphoric language implies knowledge transfer across domains (from the Greek meta pherein, to ‘carry over’). Every metaphor therefore has a ‘source domain’ and a ‘target domain.’

I thus propose to use the metaphor of (abuse of) dominant judicial position in the European market of constitutional ideas; an elaboration of the notorious ‘free market place of ideas’ suggested for the first time by US Supreme Court Justice Holmes in his legendary dissenting opinion in Abrams v. United States, Abrams v. United States (250 U.S. 616 (1919). The proposed metaphor carries over the idea of a ‘special responsibility’ from the source domain of antitrust to the target domain of judicial influence and Constitutional Courts authoritativeness.

To explain the proposed metaphor, we should start from the definition that the Court of Justice of the EU (ECJ) (in Hoffmann-La Roche) gave to the concept of dominant position, understood as ‘economic strength enjoyed by an undertaking, which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers.’

This position ‘does not preclude some competition, especially when there is a monopoly or quasi-monopoly, but it enables the undertaking […] to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment’ (para. 39).

The dominant position per se it not problematic but, because of the aforementioned ‘appreciable’ influence, the ECJ has argued (in Michelin) that the undertaking in this situation has a special responsibility, not shared by other companies not in a dominant position.

Shifting from the source domain of the metaphor to the target domain, what are the implications for the market of constitutional ideas in Europe? It means that today, differently from the time of the famous JHH Weiler constitutional tolerance frame, the ECJ can rely only on ‘voluntary obedience’ by political and judicial actors of Member States, whereas constitutional courts can always use the weapon of an obligation to obey. In other words, the equation ‘authoritativeness: European courts = authority: constitutional courts’ – which was very accurate when Weiler was writing eighteen years ago – today it risks being misleading. In fact, what matters most for constitutional courts is the moral and persuasive force of their opinions, beyond their original power to rely on an obligation to obey, as Weiler suggested. It is more in the dimension of authoritativeness than on that of authority that constitutional courts must use their best cards, especially for those constitutional courts that aim to play a front runner role in this new stage of European global constitutionalism.

Against this background, what is the main narrative which risks monopolizing the European market of constitutional ideas? And by whom spoken and aligned with? To answer these questions, we should borrow another concept from cognitive studies: the frame. More precisely metaphors are used to construct narratives, which are in turn comprised of frames, which translate into narrative structures corresponding to ‘neural networks of association’.

Shifting again from cognitive studies to European constitutional legal studies, and with regard to the specific context of judicial argumentation, a judicial frame is the expressive structure and, more broadly, the reference context for the reasoning set out in a judgment or in case law.

To develop the metaphor of dominant position in the European marketplace of ideas, my argument is that there are at least two constitutional courts within the European Union which, due to prestige, tradition and influential power, are in such dominant position: the German Constitutional Tribunal and the Italian Constitutional Court. What is the judicial frame characterizing the reasoning of these courts in hard cases related to a possible conflict between the European Union legal and constitutional orders?

For the German Constitutional Tribunal, there are no doubts, from the Lissabon Urteil decision it is clear, the prevailing frame is an excessive focus on constitutional identity; understood as the cornerstone of the defensive and polemic position of the Karlsruhe Tribunal with regard to the relationship between domestic and European legal order. This move towards the conflictual side of constitutional patriotism in the constitutional identity conversation between the German Constitutional Tribunal and the ECJ seems to involuntarily support the wind of populism blowing across Europe and from which courts are not immune. In fact, the ‘constitutional identity’ language has been manipulatively borrowed by non-independent constitutional courts to distort the original meaning of constitutional identity and fuse it with the will of the government, as the Hungarian case shows. It is not the first time that the migration to the east, of German constitutional ideas, leads to a manipulation of such ideas by an Eastern European Constitutional Court; another example is the ‘Slovak Pensions’ judgment (Pl. ÚS 5/12) adopted by the Czech constitutional Court.

As for the judicial frame used by the Italian Constitutional Court (ICC), the answer is: a mix of frames. On the one hand, the Taricco saga (concerning the different degree of protection of the principle of legality vis-à-vis the protection of the EU financial interests) seemed to reveal a new season of cooperative constitutionalism in Europe (see in particular order No 24/2017 comment thereon here), in which a frame of (common) constitutional traditions, pluralistic and tolerant by design, was going to replace of the much more constitutional-patriotic-based frame of constitutional identity). On the other hand, it is difficult to find traces of the same language of common constitutional traditions in ICC decision No 115/2018 (for a deeper analysis see here) which followed the M.A.S. and M.B. judgment (see my prior comment thereon here): here, the decision seems drenched in an emerging post-Lisbon constitutional identity narrative.

It may be a formalistic statement but the reference to the constitutional identity is present twice in the judgment (paras 5 and 11) whereas the reference to constitutional traditions is nowhere to be found.

By applying the suggested metaphor of dominant position in the constitutional market of ideas, I have shown that, because the German and Italian Constitutional courts are two of the most influential courts in Europe, they have the responsibility to avoid injecting an identity-based narrative; as such a narrative could be manipulated by not independent courts or by populist political powers. In other words, because of their dominance in the marketplace of constitutional ideas, the most influential constitutional courts in Europe have a ‘special responsibility’ (not shared by courts that are not in such dominant position) which translates into an obligation to avoid ‘identity-based’ language and to prefer the ‘common constitutional tradition’ narrative. This language and frame is more pluralistic, and more difficult to be manipulatively borrowed.

The recent judgment no 20/2019 of the ICC (February 21) related to balancing  privacy and transparency, seems to offer hope. In this judgement the identity frame is no longer the prevailing one, instead, the common constitutional traditions frame seems to characterize the ICC’s reasoning. Further, the ICC proposes an even broader pluralistic version of common traditions, which would include traditions identified by the European Court of Human Rights (ECtHR) in the context of the European Convention of Human Rights. This is a good example of the aforementioned ‘special responsibility’ taken seriously.

Oreste Pollicino is Full Professor of Constitutional Law, Bocconi University (Milan)

Suggested Citation: Oreste Pollicino, ‘Metaphors and Identity Based Narrative in Constitutional Adjudication: When Judicial Dominance Matters’ IACL-AIDC Blog (27 February 2019) https://blog-iacl-aidc.org/2019-posts/2019/2/27/metaphors-and-identity-based-narrative-in-constitutional-adjudication-when-judicial-dominance-matters