{"id":30112,"date":"2026-10-28T15:00:09","date_gmt":"2026-10-28T14:00:09","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/de\/?p=30112"},"modified":"2026-10-27T23:13:45","modified_gmt":"2026-10-27T22:13:45","slug":"the-law-as-it-presently-stands","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-law-as-it-presently-stands\/","title":{"rendered":"“The Law as It Presently Stands\u2026”"},"content":{"rendered":"

\u201cOutside the Law there stands a doorkeeper. A man from the country comes to this doorkeeper and asks to be allowed into the Law, but the doorkeeper says he cannot let the man into the Law just now.<\/em><\/p>\n

The man thinks over and then asks whether that means he might be allowed to enter the Law later. \u2018That is possible\u2019, the doorkeeper says, \u2018but not now\u2019 \u201d.<\/em><\/p>\n

Franz Kafka, The Trial<\/em> (1925), Oxford University Press, 2009<\/p>\n

When a court grounds its reasoning on \u201cthe law as it presently stands\u201d, it may be doing far more than describing the law applicable to the case. It may be signaling that a change is conceivable, but that it is not for the court to make, and that it could affect the very foundations of the legal order.<\/p>\n

At first sight, the formula may seem trivial: every judgment should rest on “the law as it presently stands”. Why, then, do courts expressly invoke the present state of the law in some decisions and not in others?\u00a0The phrase appears, almost word for word, in three landmark decisions: the French Conseil d\u2019Etat<\/em>\u2019s Arrighi<\/em> judgment in 1936<\/u><\/a>, which refused to review the constitutionality of a statute; the European Court of Justice\u2019s Opinion 2\/94<\/u><\/a>, which found that the Community could not accede to the European Convention on Human Rights; and the ICJ\u2019s 1996\u00a0Nuclear Weapons <\/em><\/u>advisory opinion<\/u><\/a>, which declined to say whether the use of nuclear weapons could be lawful or unlawful in \u201can extreme circumstance of self-defence\u201d. \u00a0This post argues that the wording used in support of these decisions conveys a message similar to Kafka\u2019s “Before the Law”. The gatekeeper leaves open the possibility that the individual may eventually be admitted to\u00a0the law, whilst never actually allowing him in: “[h]e sits there for days and years. He makes many attempts to be let in, and wearies the doorkeeper with his requests”. Like Kafka\u2019s doorkeeper, a court invoking \u201cthe law as it presently stands\u201d suggests to those hoping for a different answer that it remains unavailable\u2026\u00a0unless<\/em>\u00a0the law is changed.<\/p>\n

The formula may therefore express the court\u2019s regret and implicitly invite the lawmakers to change the law. Yet it may also carry a warning: the contemplated change might affect the fundamental characteristics of the legal order in which the court sits. The apparent invitation thus raises two questions: who may bring about such a change, and what would that change put at stake?<\/p>\n

A Formal Invitation to Change the Law<\/strong><\/p>\n

In order to assess how such wording may express regret, we must insist on the imperfection of the solutions ultimately adopted by the judges in the aforementioned cases. French academics first raised this question when they tried to make sense of the Arrighi <\/em>judgment in which the Conseil d\u2019Etat <\/em>was called upon to review the legality of a regulatory decision.\u00a0The applicant hoped to convince the highest administrative court to review the constitutionality of the statute that served as the legal basis for the contested decision. In other words, the applicant hoped to bring about a \u201cconstitutional moment\u201d (Ackerman) comparable to the one responsible for the United States Supreme Court\u2019s \u201cdiscovery\u201d of judicial review in Marbury v. Madison<\/em>.\u00a0<\/em>The Conseil d\u2019Etat<\/em> simply refused to declare a law unconstitutional, arguing that such a statute\u00a0stands between the Constitution and the administrative act adopted under it. Therefore, the administrative court is prevented from reviewing the constitutionality of the act when doing so would require reviewing the statute itself \u2013 this is traditionally described in France as the “loi-\u00e9cran<\/em>\u00a0(\u201cscreen-statute\u201d) doctrine”, because the statute acts as a screen that prevents the judge from seeing the Constitution behind it. Roger Latournerie, the commissaire du gouvernement<\/em><\/u><\/a>\u00a0who delivered the conclusions recommending a solution to the Conseil d\u2019Etat<\/em>,<\/em>\u00a0<\/em>acknowledged the importance and the value of constitutional review but accepted that certain aspects of the law might remain imperfect and unenforceable, at least provisionally. It is only then, with a certain bitterness, that the judge “resigns himself” to accepting an imperfect solution that could (should?) be changed by lawmakers: \u201cas French public law currently stands, this plea is not one that can be considered by the Conseil d\u2019Etat<\/em> in its judicial capacity\u201d (or, in its original phrasing: \u201cConsid\u00e9rant qu\u2019en l\u2019\u00e9tat actuel du droit public fran\u00e7ais, ce moyen n\u2019est pas de nature \u00e0 \u00eatre discut\u00e9 devant le Conseil d\u2019Etat statuant au contentieux<\/em>\u201d).<\/p>\n

From the perspective of the ICJ and the ECJ, the regret is more explicit. It should be recalled that in the\u00a0Nuclear Weapons advisory opinion, the Court\u2019s ruling remains controversial<\/u><\/a> because it was adopted “[b]y seven votes to seven, by the President\u2019s casting vote” (\u00a7105(2)(E)).\u00a0The disagreement stems from the fact that it is impossible to reconcile two statements that are considered to be in contradiction. First, the Court finds that \u201cthe threat or use of nuclear weapons would generally<\/em> be contrary to the rules of international law applicable in armed conflict\u201d. That should have been sufficient to declare those weapons unlawful: \u201c[h]owever, in view of the current state of international law (\u2026), the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence (\u2026)\u201d.\u00a0To quote Judge Fleischhauer<\/u><\/a>, the Court faced a \u201cterrible dilemma that confronts persons and institutions alike\u201d.\u00a0The manifest incompatibility of nuclear weapons with international humanitarian law, on the one hand, and the impossibility of prohibiting their use in all circumstances, on the other, led the Court to decline\u00a0to reach a definitive conclusion on that particular \u2013 and extreme \u2013 circumstance. Many authors expressed regret<\/u><\/a> regarding the Court\u2019s silence on an issue of such crucial importance to humanity. In truth, the Court is far from being silent as it calls on States to tackle the problem directly, through negotiations. In other words, “it is clear that the Court cannot legislate”\u00a0in place of States, however imperfect its conclusion may be (\u00a718 and \u00a7105(2)(F)).<\/p>\n

By placing such emphasis on a situation “in which the very survival of a State would be at stake”, is the Court really calling on States to make a change that could jeopardise their very existence?<\/p>\n

A Call for Caution Regarding the Evolution of the Law<\/strong><\/p>\n

To assess whether the ICJ\u2019s choice of words\u00a0invites change or urges caution, let us briefly return to the ECJ\u2019s case\u00a0law mentioned earlier. In its Opinion 2\/94, the ECJ considers that “[a]s Community law now stands, the Community has no competence to accede to the [ECHR]” (\u00a736<\/u><\/a>). Such a solution is damaging enough considering that the Court admits the European Convention has “special significance” in its jurisprudence: it refers to its provisions\u00a0when determining whether Member States are respecting fundamental individual rights (\u00a7\u00a033).\u00a0Furthermore, given that “[r]espect for human rights is (\u2026) a condition of the lawfulness of Community acts”, accession to the ECHR would appear to be of particular value, at the very least because it would provide an\u00a0additional safeguard by subjecting the Community institutions to external judicial scrutiny.<\/em> It is probably the reason why the Court notes that change is possible, even though it would “entail a substantial change in the present Community system for the protection of human rights (\u2026), with equally fundamental institutional implications for the Community and for the Member States” (\u00a7\u00a734-35). In other words, the proposed change “would be of constitutional significance” and require “Treaty amendment” (\u00a735).<\/p>\n

The change envisaged in Opinion 2\/94 came\u00a0in 2007, with the conclusion of a new Treaty<\/u><\/a>\u00a0providing that\u00a0\u201c[t]he Union shall<\/em> accede to the [ECHR]\u201d.\u00a0In Opinion 2\/13, the Court acknowledged that accession now \u201chad a specific legal basis in the form of Article 6 TEU\u201d, yet found the proposed accession agreement was incompatible with EU law and its “significant distinctive features” (\u00a7\u00a7153-154<\/u><\/a>).\u00a0This surprising turn of events\u00a0raises a question: did the wording of Opinion 2\/94 already reflect the Court\u2019s concern that accession\u00a0might\u00a0alter the fundamental characteristics of the legal order within which it exercises its jurisdiction?\u00a0After all, almost twenty years after the Court\u00a0invited Member States to change the law, it considered that the draft accession agreement did not sufficiently take into account \u201c[t]he fact that the EU has a new kind of legal order, the nature of which is peculiar to the EU, its own constitutional framework and founding principles (\u2026)\u201d (\u00a7158).<\/p>\n

In its Opinion 2\/13, the Court does indeed highlight that the attribution to the EU of the competence to accede to the ECHR is still insufficient, even though this was the ratio decidendi<\/em> of Opinion 2\/94. Despite the change in positive law, the Court believes that the EU\u2019s\u00a0“peculiar” nature\u00a0“has consequences as regards the procedure for and conditions of accession to the ECHR” (\u00a7158). What those conditions are in regard to EU law is not what matters here. Rather, it is the conclusion we might reach regarding the use of the wording “as the law currently stands\u2026”. Rather than simply inviting legal change, judges may be drawing attention to its implications for the fundamental characteristics of the applicable law. The formula would thus highlight the constitutional significance of the proposed change.<\/p>\n

At the time the Conseil d\u2019Etat<\/em> handed down the Arrighi<\/em> judgement, its ruling reflected the ineffectiveness of the French 1875 constitutional laws<\/u><\/a> within a legal system permeated by a legal-centrist conception \u2013 i.e.<\/em>, \u00ab\u00a0l\u00e9gicentrisme<\/em>\u00a0\u00bb, in which the law is the \u00ab\u00a0expression de la volont\u00e9 g\u00e9n\u00e9rale<\/em>\u00a0\u00bb (see Latournerie\u2019s submissions, pp. 674-<\/u>676<\/u><\/a>). The introduction of constitutional review could only take place after the intervention of the constituent power, with the adoption of a new Constitution\u00a0in 1958<\/u><\/a>. Since then, the Conseil constitutionnel<\/em>\u00a0has drawn\u00a0the consequences of this (r)evolution: statutes \u201cexpress the general will only in compliance with the Constitution\u201d (our translation,\u00a0\u00a727<\/u><\/a>). In other words, France finally succeeded in having its Marbury v. Madison<\/em> moment, where a court\u00a0explicitly declared the superiority of the Constitution over the law\u2026 but did so only after the constituent power carefully drafted the basis for this change.<\/p>\n

One could argue the ICJ supported a similar approach in a very different context, regarding nuclear weapons. The dilemma faced by the Court in reaching a definitive conclusion on the lawfulness of their use sheds new light on its references to the “fundamental right to survival” and to an “extreme circumstance of self-defence”. They may be read as revealing the structural premise underlying the Court\u2019s uncertainty: the central place of the State within the international legal order. The absence of a definitive answer on the matter would thus reflect the difficulty of reconciling the prohibition of nuclear weapons with the preservation of a primary subject of international law.\u00a0To quote again Judge Fleischhauer<\/u><\/a>, “no legal system is entitled to demand the self-abandonment, the suicide of one of its subjects”.\u00a0A change may occur in favour of humanity, but we are not quite there yet. The wording thus reveals what is truly at stake: a definitive ban on nuclear weapons, despite the continuing risk of interstate war, would be the sign of a “constitutive moment” in international law.<\/p>\n

The formula deserves our utmost attention because it may foreshadow constitutional change or reveal a constitutional obstacle that cannot be overcome due to the fundamental characteristics reflected in the law, “as it presently stands”.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cOutside the Law there stands a doorkeeper. A man from the country comes to this doorkeeper and asks to be allowed into the Law, but the doorkeeper says he cannot let the man into the Law just now. The man thinks over and then asks whether that means he might be allowed to enter the […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[7403,3743,7499],"authors":[8140],"article-categories":[6000],"doi":[],"class_list":["post-30112","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-france","tag-icj","tag-international-legal-order","authors-jean-baptiste-dudant","article-categories-article"],"acf":{"subline":"The Authority of the Present and a Conditional Future"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30112","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=30112"}],"version-history":[{"count":4,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30112\/revisions"}],"predecessor-version":[{"id":30144,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30112\/revisions\/30144"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=30112"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=30112"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=30112"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=30112"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=30112"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=30112"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}