By Tim Corthaut
Book review: S. Vogenauer and S. Weatherill (eds.), General Principles of Law – European and Comparative Perspectives, Hart, 2017, 418 p.
The book is a collection of articles that reflect the outcome of a two-day seminar organised by the Oxford Law Faculty’s Institute of European and Comparative Law in 2015 on general principles of law. As often with collective works the result is a mixed bag with articles jumping in various directions, dealing with international law, EU law, private law and comparative law; some take a bird’s eye view on the legal landscape or the history of European integration, others focus on very specific issues, such as discrimination on the grounds of obesity. All authors, however, have clearly something to tell.
The book starts off with a brief introduction, as is customary for a collective work, but quickly cuts to the chase. The first two substantive chapters contrast the use of general principles in international law through a pleasant overview by Catherine Redgewell and in EU law with a most enjoyable essay by one of the editors, Stephen Weatherill.
Part I of the book then addresses the place of general principles in greater detail. Urška Šadl and Joxerramon Bengoetxea set the stage for three thought-provoking essays. The price for most contrarian goes to Alexander Somek. If Wheaterill observes in his essay that “[o]nly a legal order embroidered by general principles could match the breadth of the Court’s vision of the new legal order which directly concerns individuals and not states alone, and only such an enriched legal order could deserve to command the respect of properly suspicious national”, Somek seems to wonder whether those suspicions are not highly justified, and seeks to unmask the invocation of vague general proportionality as nothing less than a power grab by the Court. Thought-provoking, certainly, but as often with critical legal studies, the legal practitioner is left with the nagging question: so, what? The essay by Xavier Groussot, Jörgen Hettne and Gunnar Thor Petursson is, however, far more constructive and builds on Weatherill’s vision by linking the use of general principles with the quest for coherence within the EU legal order. Finally, the contribution by Samantha Besson addresses the fascinating question as to why the EU legal order – unlike public international law – has never fully developed a body of customary EU law, but has made extensive use of general principles.
Part II of the book shifts the focus to one specific general principle: the principle of proportionality. Probably the most ubiquitous general principle, both in the jurisprudence of domestic and international courts and in literature, it seems like a safe and bland choice. Nothing could be further from the truth. As Alison Young and Gráinne De Búrca argue in their excellent introductory chapter, everything you think you know about proportionality, its origins and its place in the (EU) legal order is probably only half true. Essays by Paul Craig on proportionality and judicial review from a UK historical perspective, by Juliane Kokott and Christoph Sobotta on the evolution of the principle of proportionality in EU law, by Philip Sales on the ECHR, by Yoan Sanchez on French case law, by Giuseppe Martinico and Marta Simoncini on Italian law and Helle Krunke on Danish law, serve as exhibits A to F for that thesis.
Part III of the book addresses Private Autonomy and Protection of the Weaker Party. It feels somewhat artificial and out of place. Surely, it is one of the great merits of the editors to have brought public and private lawyers together to discuss general principles. But by focusing on “the protection of the weaker party” a number of topics relating to consumer protection and non-discrimination law are put together without convincing nexus, not internally and even not in relation to the overarching theme. All too often it feels like a “general principles” sauce has been spilled over areas of statutory law and EU harmonization. Of course, one could object that this is precisely what the Court has done in Mangold and its progeny, but here it feels a bit off. However, all this is merely a criticism of the place of Part III in the book as a whole. The individual essays on the protection of the weaker party from a historical perspective (by Hector MacQueen and Stephen Bogle), from a contract law perspective (by Dori Kimel) and from a law and economic perspectives (by Fernando Gómez and Mireia Artigot) are all most interesting. The same goes for the contribution on the civil law principle of fairness in the case law of the Court of Justice (by Daniela Caruso) and the two contributions on discrimination law, by Niilo Jääskinen on discrimination on the grounds of obesity and by Alina Tryfonidou on discrimination on the grounds of sexual orientation and gender identity.
Those who make it to the very end of the book are served a final treat. A short, delightful essay by David Edward, reflecting on general principles and the role of the judge, written with the same self-confidence and humility he expects from a judge.
Overall, this is a thought provoking book. It does not offer what I expected, and perhaps hoped, it would do: a good overview of general principles, which I could assign my students as background reading when teaching general principles. But the book offers something different, and perhaps far more precious instead. A collection of well written essays that remind us of the kaleidoscopic nature of the European legal order, forcing the reader to leave the clichés behind and reflect more deeply about legal concepts we use on a daily basis, without ever fully grasping their nature.