“The Law as It Presently Stands…”

“Outside 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 Law later. ‘That is possible’, the doorkeeper says, ‘but not now’ ”.

Franz Kafka, The Trial (1925), Oxford University Press, 2009

When a court grounds its reasoning on “the law as it presently stands”, 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.

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? The phrase appears, almost word for word, in three landmark decisions: the French Conseil d’Etat’s Arrighi judgment in 1936, which refused to review the constitutionality of a statute; the European Court of Justice’s Opinion 2/94, which found that the Community could not accede to the European Convention on Human Rights; and the ICJ’s 1996 Nuclear Weapons advisory opinion, which declined to say whether the use of nuclear weapons could be lawful or unlawful in “an extreme circumstance of self-defence”.  This post argues that the wording used in support of these decisions conveys a message similar to Kafka’s “Before the Law”. The gatekeeper leaves open the possibility that the individual may eventually be admitted to the 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’s doorkeeper, a court invoking “the law as it presently stands” suggests to those hoping for a different answer that it remains unavailable… unless the law is changed.

The formula may therefore express the court’s 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?

A Formal Invitation to Change the Law

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 judgment in which the Conseil d’Etat was called upon to review the legality of a regulatory decision. The 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 “constitutional moment” (Ackerman) comparable to the one responsible for the United States Supreme Court’s “discovery” of judicial review in Marbury v. Madison. The Conseil d’Etat simply refused to declare a law unconstitutional, arguing that such a statute stands 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 – this is traditionally described in France as the “loi-écran (“screen-statute”) doctrine”, because the statute acts as a screen that prevents the judge from seeing the Constitution behind it. Roger Latournerie, the commissaire du gouvernement who delivered the conclusions recommending a solution to the Conseil d’Etat, 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: “as French public law currently stands, this plea is not one that can be considered by the Conseil d’Etat in its judicial capacity” (or, in its original phrasing: “Considérant qu’en l’état actuel du droit public français, ce moyen n’est pas de nature à être discuté devant le Conseil d’Etat statuant au contentieux”).

From the perspective of the ICJ and the ECJ, the regret is more explicit. It should be recalled that in the Nuclear Weapons advisory opinion, the Court’s ruling remains controversial because it was adopted “[b]y seven votes to seven, by the President’s casting vote” (§105(2)(E)). The 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 “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict”. That should have been sufficient to declare those weapons unlawful: “[h]owever, in view of the current state of international law (…), 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 (…)”. To quote Judge Fleischhauer, the Court faced a “terrible dilemma that confronts persons and institutions alike”. The 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 to reach a definitive conclusion on that particular – and extreme – circumstance. Many authors expressed regret regarding the Court’s 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” in place of States, however imperfect its conclusion may be (§18 and §105(2)(F)).

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?

A Call for Caution Regarding the Evolution of the Law

To assess whether the ICJ’s choice of words invites change or urges caution, let us briefly return to the ECJ’s case law 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]” (§36). 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 when determining whether Member States are respecting fundamental individual rights (§ 33). Furthermore, given that “[r]espect for human rights is (…) 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 additional safeguard by subjecting the Community institutions to external judicial scrutiny. 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 (…), with equally fundamental institutional implications for the Community and for the Member States” (§§34-35). In other words, the proposed change “would be of constitutional significance” and require “Treaty amendment” (§35).

The change envisaged in Opinion 2/94 came in 2007, with the conclusion of a new Treaty providing that “[t]he Union shall accede to the [ECHR]”. In Opinion 2/13, the Court acknowledged that accession now “had a specific legal basis in the form of Article 6 TEU”, yet found the proposed accession agreement was incompatible with EU law and its “significant distinctive features” (§§153-154). This surprising turn of events raises a question: did the wording of Opinion 2/94 already reflect the Court’s concern that accession might alter the fundamental characteristics of the legal order within which it exercises its jurisdiction? After all, almost twenty years after the Court invited Member States to change the law, it considered that the draft accession agreement did not sufficiently take into account “[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 (…)” (§158).

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 of Opinion 2/94. Despite the change in positive law, the Court believes that the EU’s “peculiar” nature “has consequences as regards the procedure for and conditions of accession to the ECHR” (§158). 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…”. 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.

At the time the Conseil d’Etat handed down the Arrighi judgement, its ruling reflected the ineffectiveness of the French 1875 constitutional laws within a legal system permeated by a legal-centrist conception – i.e., « légicentrisme », in which the law is the « expression de la volonté générale » (see Latournerie’s submissions, pp. 674-676). The introduction of constitutional review could only take place after the intervention of the constituent power, with the adoption of a new Constitution in 1958. Since then, the Conseil constitutionnel has drawn the consequences of this (r)evolution: statutes “express the general will only in compliance with the Constitution” (our translation, §27). In other words, France finally succeeded in having its Marbury v. Madison moment, where a court explicitly declared the superiority of the Constitution over the law… but did so only after the constituent power carefully drafted the basis for this change.

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’s 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. To quote again Judge Fleischhauer, “no legal system is entitled to demand the self-abandonment, the suicide of one of its subjects”. A 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.

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”.