Keywords

1 Missing Links

Human rights and the rule of law are integral to value debates in Europe. Politics and academia see them as common points of reference or an expression of a (kind of) overlap** consensus. At the same time, human rights and the rule of law are conceived and promoted as core European values in themselves and as the expression of (other) core European values, as Wim Weymans, Chap. 3, this volume, explains. Furthermore, values are regarded as the source and foundation of human rights and legal systems. Still, debates on values and rights remain on a rather abstract level. Even when they are concerned with the mobilisation of values in political campaigns or before courts, they rarely consider the internal workings of legal institutions, the way legal experts handle a case, or how legal institutions and experts come to reach their decision (see McIvor 2020 for a different approach). This is puzzling insofar as all our value discourses occur within the framework of established legal systems and centuries of conceiving and fighting for what we know as the rule of law today.

Many who invoke human rights and the rule of law in value debates give the impression that these institutions and concepts are stable and that their meaning is clear. Therefore, they may provide an anchoring point in fuzzy debates. While values are conceived as contested and often as incommensurable, legal norms are understood as a result of clearly delineated procedures and established methods of interpretation and application. Furthermore, the court system at national and international level is under an obligation to decide given conflicts in an impartial and transparent manner. No court is allowed to abstain from decision-making and it must not state that it can’t decide a given case.

In politics, we find a growing tendency to use value concepts and value references in legislation. Here again, we can recognise an intention to stabilise certain concepts and bring public debates and conflicts to a close. But this is also done with the intention of altering the dynamics of legal and legislative procedures. Values – and principles, as they will be often called – shall guide the application and creation of laws, for example by emphasising transparency and accountability or equality of human self-conceptions. But they can also be used to undermine such goals by introducing political concepts in legal norms and confusing legal and political approaches to given conflicts.

Those who maintain a given legal system – the judges, lawyers, administrative experts, etc. – are rarely part of such debates. We know only little of how they perceive those debates, what they personally think about values and the law, and of value conflicts that are brought before them. More often than not, I guess, academic and political debates will assume that the practitioners will have a kind of comprehensive background knowledge that allows them to handle such cases in the expected manner. It might be that the virtuous lawyer of ancient Roman texts overshadows such debates. It may be that there is a vague sense of Tocqueville’s image of the guiding role of lawyers and judges in an evolving democratic society. It might also be a literary figure like Atticus Finch in Harper Lee’s To kill a mockingbird – often read as a voice of liberal learning, decency, and civility.

What strikes me is the fact that legal and political discourse has discussed the growing role of law courts – especially of supreme courts and constitutional discourse – for decades. The debates are shaped by those who are wary of a growing judicialisation of politics (Waldron 1999; Albers 2012) and those who promote constitutional courts as safeguards of rational debate, equality, and human rights (Lafont 2020; Stourzh 2021). But both sides of the debate continue to assume an impartial and learned attitude of the courts’ members and seem to hold that it will be maintained by the specific institutional setting. Often, it is assumed that courts will weigh the arguments brought before them in the light of current circumstances and social developments. In contrast, it is uncommon in Europe to ask how those assumptions are formed in a court and how the transformations of knowledge and perception of societies, the formation of individual values, and the conceptions of ideology, ethics, and religion influence those who make binding legal decisions.

In general, legal systems and legal institutions are perceived as hierarchical and intrinsically linked with our understanding of a well-ordered state and society in the Western tradition (a point I will return to in Sect. 11.5). We get a very different picture if we try to view legal systems from within. They have multiple layers that are connected or influence each other in horizontal, vertical, and diagonal ways. Courts and scholars of various countries have developed ways of communicating and receiving ideas, legislators emulate foreign approaches within their vernacular legal system, and practitioners seek guidance among peers.

I will try to offer an introduction to this world or realm of law in the context of this volume’s discussion of European values. My approach will be guided by what is often called ‘law in context’ and which discusses law and legal phenomena critically in their cultural, social, political, technological, environmental, and economic contexts. This is a rather broad approach that uses materials and methods from other humanities and social science in order to understand legal phenomena better. In that way, it can have a lot in common with legal and social philosophy and the sociology of law, and it enables other disciplines to engage in an interdisciplinary dialogue.

In my attempt, I will take up some exemplary questions and approaches that have been discussed in legal theory and legal sociology since the 1960s at least, but which have so far barely been linked to the analysis of value debates. I will present each of them from the perspectives of various groups that influence and shape the understanding of the rule of law, human rights, and legal systems. In doing so, I will not add yet another chapter to the long-standing debates on the relation or distinction between law and morality or justice and fairness. Rather, I will look at the social functions of law and the self-conception of legal institutions and people within them. I will start with legal scholars and ask how they conceive the institutional basis of the rule of law in relation to value debates (Sect. 11.2). From the perspective of theory, we will encounter a more or less technical view of rights, laws, and the rule of law, and can conjecture as to why value debates have gained influence over recent decades. In the next section, I will look at politicians and political debates that are led by the desire to enshrine certain values in constitutions and laws. This will lead to a discussion of the narrative on the preconditions of the modern state and how it is used to establish the prevalence of a certain set of values (Sect. 11.3). I will then turn to practice and the perspective of courts and judges. I will ask what, if any, role such discourses play there and what this implies for value conflicts that are brought before courts (Sect. 11.4). Finally, I will look at those who aim to defend or secure their rights and their religious, moral, and cultural views by mobilising the law. I will provide examples through reference to conflicts about migration and religion in the public sphere and the recurrence of intuitions about rights and justice rather than through a reconsideration of legal relations (Sect. 11.5). On that basis, I will draw some conclusions for future research and debate (Sect. 11.6).

2 Legal Consciousness, Knowledge, and Practice

In principle, we are all familiar with the basic tenets and functions of laws, legal rights, and legal systems and their definition in law and the humanities. In their most general form, we can describe them as sets of rules that structure the relations between specific groups of people. We usually hold that the core difference between legal rules and other rules of behaviour is that the former need only to be followed externally or outwardly. In other words, law does not – or at least to a certain degree, as we will soon see – need internal conviction in order to function. It is sufficient to act in conformity with it. In this way, modern societies have perceived law as their central means of integration. Legal norms provide us with the chance to live and cooperate freely with each other in a society of strangers. They stabilise expectations in others and enable us to rely on others because we hold legal norms as rules that are binding and legitimate, meaning that they have been created through certain procedures and can be enforced by authorities. When we speak of the rule of law, we usually refer to principles of formal and procedural character that address the way in which a community is governed. The state under the rule of law sets clear limits to state power, and it requires that all acts of the state are performed in compliance with strict procedural rules and that fundamental rights of individuals are guaranteed. This, too, is the point at which most of us will refer to the ‘value of law’, as it changes the way power is exercised in a political community and ensures that power is less arbitrary, more predictable, more impersonal, and less peremptory (Fuller 1964). The rule of law is valuable, therefore, as it establishes an environment that is conducive to liberty, and it frees us from dependence upon the will of others (Hayek 1960).

This is only a very rough sketch, but it already shows that a legal system and the rule of law lay a general claim on society without demanding that everyone in this society be familiar with all of the legal rules, instruments, and procedures. Therefore, we speak of expectations, trust, and reliance on each other and on the institutions within which we lead our lives. But the maintenance of institutions cannot rely on expectations for external behaviour alone. Champions and defenders of the rule of law emphasise that it requires constant effort to maintain it so that it can survive in the face of disappointment. Stephen Breyer, a former judge of the US Supreme Court, famously said that:

Following the law is a matter of custom, of habit, of widely shared understandings as to how those in government and members of the public should (...) act when faced with a court decision they strongly dislike. That habit and widely shared understanding cannot be achieved without a struggle; it is a long, gradual development based on experience. (Breyer 2011: 22–23)

Also, such a broad approach to a legal system and the rule of law can help us to understand that almost all our social relations are influenced and shaped to a considerable degree by law or may conflict with it. In a state under the rule of law, it is necessary to distinguish between moral, political, and legal spheres. But it will more often than not be impossible to consider moral and political matters without reference to the law or by pretending that a specific problem or conflict is merely moral or political. This is, as we will see in more detail below (Sect. 11.5), of particular importance, as in such a state law is a central means of social mobilisation.

This view can be underscored through the history of constitutionalism, human rights, and the rule of law. In 1776 the Declaration of Independence of the 13 states of the United States (US) began with the famous words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights (...). That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed (...).

Here, I want to discuss neither the reference to natural rights and natural law nor the initially exclusionary character of the US Constitution. Rather, I want to emphasise the emotional, appellative, and legal character of this statement. The struggle for the establishment of constitutional states and equal rights in the US and then in Europe was strongly influenced by calls to end cruelty and abuse, to show empathy, and to recognise others as persons bearing rights. In so doing, the Civil Rights Movement could overcome the initially restricted view of ‘Men’. It could appeal to anyone and make them understand what it means to have rights, why it is important that rights can be enforced, and what it means to say that a society is based on equal rights rather than, for example, ethnic origins or historically given hierarchies of power (Richter 2020). It is crucial to note that the struggle for equal rights has always been connected with the struggle to claim these rights in court and to enforce them. Therefore, it was necessary to take the courts and legal proceedings into account, to explain their role and function, and thus to create the cognitive basis necessary to create and maintain a state and society based on equal rights (Stourzh 2021; Bell 2021).

Such an approach differs significantly from a mere appeal to the value of human rights or the rule of law, as it takes the organisation and practices of a legal system into account. It attempts to explain and connect it to a universal moral and legal outlook and to specific historical experiences and grievances. At the same time, it makes clear what is needed to create and maintain such an order in an institutional and procedural sense. But this connection has come under pressure and may even have been lost, as a growing number of observers from within the legal discipline find (Weiler 2004; Corstens 2017). They not only refer to open attacks on and attempts to undermine the rule of law in some states, but also ask why the rule of law can be at risk in any state. This may sound paradoxical when we look, for example, at the World Justice Project’s Rule of Law Index, which has mostly European countries in its top ranks. Here, we can also refer to an extremely dense web of legal norms, the status of legal experts and legal erudition, and the power of the courts on national and supranational levels. On the other hand, this dense web of rules is connected to a view of law and legal systems that shall be strictly separated from any moral or ethical considerations. In that way, legal knowledge and legal practice can become the domain of a group of specialists and/or instruments to achieve and maintain power. Such views developed in parallel with the rise of constitutionalism and were seen as a means to safeguard rationality in the Weberian sense as well as to confine legal practice and the aspirations of legal practitioners within certain boundaries. This can be exemplified, for instance, in post-1848 university reforms in the Habsburg Empire that banished moral philosophy and economics from law curricula in order to create jurists who would see their role only in executing the positive law (Heindl 2013).

Philosopher Judith Shklar, who was interested in a contextualist analysis that situates law within socio-historical and cultural conditions, looked at such developments to formulate her theory of law as an ideology. By that she meant ‘a series of personal responses to social experiences which come to color, quite insensibly often, all our categories of thought’, and referred to the inevitable perspectives of practitioners of mature legal systems (Shklar 1964: 41). Seen that way, law can become something that can only be properly conceived and used by a special group of experts in possession of legal knowledge (Somek 2021). Then debates risk becoming the domain of a closed circle and thus favour internal views. Here, the Enlightenment-inspired demand that laws need only to be followed externally gets a new meaning. The normative question, ‘What ought to be done?’, is transformed into the practical question, ‘What can be done within a given legal framework?’, or more bluntly, ‘How far can we go?’. Such a view is legitimate, as our understanding of law and following the law is based on external behaviour. Nobody is obliged to give their own reasons and their own ends when following the law. In this way, it becomes possible to build an autocratic regime that has the appearance of an exemplary model of the rule of law (Scheppele 2018). But when we understand the rule of law as a specific ethos that is meant to safeguard social diversity and hence a diversity of moral outlooks, a merely instrumental understanding and use of laws might in the end undermine the whole system. Law as an ideology will then, in Shklar’s words, exhaust itself ‘in intoning traditional pieties and principles which are incapable of realization’, and the ‘creative power’ and the ‘ethos’ of the rule of law will be lost (Shklar 1964: 112).

We may better understand what Shklar meant when we look at two academic reflections on the state of the rule of law in the European Union over the course of 20 years. The EU witnessed significant transformations and debates throughout the 1990s. The realisation of the ‘ever-closer-union’ and the demands for stricter fiscal policies to prepare for a common currency were met by growing political debates and doubts about the aims of European integration. The catchword was ‘democratic deficit’, which referred to a variety of debates from the effective powers of national governments and the roles of representative assemblies in the political participation of citizens. In reply, EU institutions and proponents of integration turned to a rhetoric of ‘what the EU has achieved for you’ and focused on effective regulation, economic success, and consumer rights. In a way, they proposed to make the web of legal norms more tightly knit and promised that anyone ‘who knows how to play by the rules’ will be guaranteed individual success. The legal scholar Joseph Weiler became one of the most eminent critics of this development (Weiler 1999). By no means a Eurosceptic, he argued that such an approach might well empower legal consumers but disempower individuals in their status as citizens. He did not deny that the rule of law can be understood as creating the perfect environment for following personal goals in a super-safe context. But he saw the logic of laws and politics undermined by a logic of the market, and rights reduced to mere consumer goods. In that sense, he wondered how the EU would deal with times of significant crisis in which it might not be able to deliver its promises and guarantee success.

Now, 20 years after Weiler, we discuss the rule of law in a different tone. The question of the aims of European integration has become crucial in the course of Brexit and in the conflicts between the EU institutions (and thus a significant number of its member states) and the governments of Hungary and Poland (and to some degree further member states). International expert institutions and scholars have no doubt that Hungary and Poland are gradually deviating from the core principles of the rule of law and especially equality of rights as proclaimed by the EU treaties and the European Convention on Human Rights. Both countries have continuously restricted the scope and interpretation of fundamental rights, undermined the independence of the judiciary, and infringed democratic institutions (Venice Commission 2013). There have, of course, been numerous judicial disputes before the European Court of Justice, and resolutions and statements by the European Council, the European Parliament, and the European Commission. New legal and political instruments and mechanisms have been devised with the noble aim of safeguarding and promoting the rule of law and making governments who deviate from its path comply. But so far, none has reached its aim (Pech et al. 2021). The governments of Hungary and Poland deny that they undermine the rule of law. On the contrary, they insist that they are absolutely true to the rule of law as established by their constitutions, and they list numerous examples of laws and court decisions in other EU member states whose wording corresponds with their own. In so doing, they refer to the ‘technical approach’ described above (Grabenwarter 2018). The legal scholars Tímea Drinóczi and Agnieszka Bień-Kacała speak of a ‘pushing the limits game’ played by Hungary and Poland in order to defend and stabilise their system of illiberal constitutionalism (Drinóczi and Bień-Kacała 2020). They go on to ask whether legal and political measures coming from the EU can have even the slightest potential to change this situation. As has been seen before, these are most likely to be communicated as ‘attacks from Brussels’ on national sovereignty and the constitutional identity. Therefore, both urge EU leaders and fellow academics to conceive the underlying conflicts not merely as matters of rule compliance, but as social and ethical conditions that are necessary to maintain the rule of law and help to build and maintain resilient societies (Drinóczi and Bień-Kacała 2020; Drinóczi 2021).

The examples from legal, philosophical, and historical debates can help us to understand that the rule of law and the maintenance and enforcement of legal rights rely on a complex web of social conditions. The examples make clear that it is necessary to distinguish between the rule of law as a type of legal system and as a specific ethos. Like any other ethos, it relies on the creation of broad social commitments and on particular pedagogic strategies that might or might not be aligned with what we perceive as guiding values in a given society.

3 Sources of Law

So far, I have sketched some basic conceptions of the rule of law and its social context. I have emphasised the role of custom and an underlying ethos to build and maintain such an order and asked how this relates to the ‘technical’ aspects of law. From this perspective, we might conceive parallels with the way we discuss values in general, but we might also note crucial differences, especially regarding a universalistic conception of the rule of law and its intrinsic legal character that focuses on formal proceedings, coercive measures, and external behaviour. When we turn, as Drinóczi and Bień-Kacała (2020) demand, to practical matters, we are faced with the question, what is necessary to implement a universalistic concept in a concrete society with its particular history? This brings us to the role of the rule of law in political debates and in its political contexts.

Interestingly, the answer that is given in political discourse tends to favour particular and vernacular views over universal concepts. By emphasising these, I do not say that specific laws – and constitutions as ‘foundational laws’ in particular – shall not be influenced by the history and experiences of given states and societies. But there is a difference between history that has influenced the creation of specific institutions; the distribution of powers; and the formulation of rights and legal texts, and the intention to privilege certain views and understandings over others. Wim Weymans, Chap. 3, recalls in this volume how particular values were enshrined in universal language in the European Convention on Human Rights and in the EU treaties. Today, we are increasingly confronted with legislators’ intentions to safeguard and implement particular values explicitly in legal texts, for example, in laws that regulate residence permits and citizenship and demand proofs of integration that go beyond the adherence of the constitutional and legal order (Pöschl 2012). We can note at least three aspects of such developments: (1) They deviate from traditional legal discourse as they focus on internal convictions. (2) They limit the scope of legal interpretation by explicit reference to value debates (although often failing to provide definitions, as we will see in Sect. 11.4). (3) They call into question the idea that there can be an ethos supporting the rule of law that is created and maintained through the rule of law and the careful approach to individual and societal sources of normativity that fundamental rights guarantee.

These developments can be exemplified by the debates about constitutional preambles. A preamble is an introductory and expressive statement in a legal text (or any other document) that will usually explain the reasons for and purpose of what is to come. Preambles are a common feature of international treaties and constitutions, but they do not usually attract much attention in legal discourse, as their content is deemed non-normative and non-binding. This means that no individual and/or collective rights or duties of the state can be derived from the text of a preamble. No matter what is stated in the preamble, it is the actual legal text and the systematic interplay between the legal norms that count (Konrath 2004). Still, the text of a preamble is enacted in the same procedure as any other part of a constitution or treaty, etc., and demands the same qualified majorities, giving it substantial political weight.

The exemplary model of a modern constitutional preamble is that of the German Grundgesetz 1949. It marks the new beginning in the Federal Republic of (West) Germany after the Nazi era and the Second World War by invoking responsibility before God and (hu)mankind and through the resolution to preserve the state’s national and political unity and to serve world peace as an equal partner in a united Europe. In its essence, it is a commitment to a secular and pluralistic democracy that acknowledges the plurality of individual moral commitments and rejects former conceptions of national and state sovereignty. It does so by placing West Germany as an equal partner of other states, accepting the international order as a means to limit state power and conceding that the state has only limited scope (Dreier 1996). The reference to God and (hu)mankind has been linked to philosopher Agnes Heller’s image of the ‘empty chair of power’ (Heller 1997). Like the chair on which no one is allowed to sit, this reference makes explicit the intention that there will never again be a totalitarian state. The state is limited and its power is constrained. At the same time, this empty chair can be a reminder of what is lost, and of those who are no longer here, because they fell victim to murderous action and the hubris of power. In such a way, a preamble can have a pedagogical function and provide a way to understand the normative content of a constitution, supporting the creation of an ethos that helps to maintain it (Konrath 2004).

But preambles can mark a different kind of beginning, too, as political scientist Julie Mostov (1994) points out. Their creation and enactment can be a powerful means for the politics of national identity and can secure constitutional legitimacy (which can, in turn, be sold as objective validity) in a particular historical narrative. This became prevalent in the new constitutions of post-Soviet states. The preambles of Croatia, Slovakia, or (then) Macedonia were meant to enshrine a mythical history and the realisation of century-long desires of the nation to retain its political subjectivity and sovereignty. Thus, the chair of power should not remain empty. Even if the ensuing constitutional norms guarantee the rights of members of minority groups, the preamble makes clear that their status is granted to them by the majority and that they are meant to live within a nation whose history and values are not meant to be theirs as well.

Preambles can also be used to mark transformations of existing orders or a reinterpretation of a given constitution. From 2002 to 2004, the EU Convention set out to draft a Constitution of Europe. From a technical point of view, it could be said that the EU already had a constitution in the sense of a supreme body of law that regulated how decision-making should be organised and binding legal norms be created and enacted. From a political point of view, though, speaking of a constitution was understood as creating a new superstate. This distinction is quite difficult to explain, as is the complex institutional architecture of the EU. But the proposal to include ‘God’ or Europe’s religious heritage in a new preamble generated a lot more interest and ideological debate (Konrath 2004). Unlike the creation of the European Charter of Human Rights, where a Christian vision of Europe was framed in universal language (Duranti 2017), the Christian heritage should now be made explicit or denied completely. Joseph Weiler criticised the lack of historical knowledge and consciousness of both sides and reminded them of the plurality of constitutions in Europe (Weiler 2004). But his attempt to formulate an inclusive approach that would commit believers and non-believers alike (and foresaw a special duty of Christians to help establish a culture of dialogue and toleration) was reduced to a Jewish scholar’s wake-up call for Christians of Europe (Konrath 2005). In the end, however, the religious heritage became part of the preamble of the Treaty of Lisbon 2007, which was meant to replace the failed attempt to enact a Constitution of Europe.

While the question of the relation between universalistic and concrete conceptions of justice and solidarity remains unresolved on a European level (and has not been taken up again), the amendment of the Hungarian Fundamental Law in 2011 tells a different story. Here, a new preamble should mark the deviation from the henceforth liberal trajectory of the Hungarian Constitution. The preamble follows the model that Julie Mostov described. It enshrines a mythical conception of the nation, its history, and Christian values. Such formulations stand in remarkable contrast to the catalogue of fundamental rights that follows more or less international models. But the demand to interpret all constitutional norms in light of the preamble makes it explicit that legal interpretation must no longer be done autonomously. Rights are not to be understood in a universal or ‘liberal’ sense, but in a specific Hungarian one – whatever that might be (Halmai 2018).

Preambles can be a tool to initiate popular discussions and thus facilitate the understanding of a constitution as foundational consensus. In that sense, they can be an invitation to take part in a wider constitutional discourse and avoid mere expert discourses. Here, the reference to ‘values’ might open debate and make it possible for many people to join the debate. A restrained legal approach to values could ensure that the many voices of a plural democracy can be raised and heard over time and are not confined to one particular world view (Green 2021). On the other hand, the reference to values in legal texts can be used to blur the line between politics and law. It is interesting to observe how the debates remain on the level of narrative and values but fail to connect to rights and the limits of political and state power that are at stake. But these are not just political campaign tools or power games. Such debates go to the core of conceptions of the rule of law and values and the relation between them.

This is the point at which politicians will cease to talk merely about ‘our values’ but see how they can legitimise their views and strategies by reference to philosophical debates (cf. Khol 2005). Again, the debates about a European Constitution can provide insights. In 2004, the year in which those debates reached their peak, Cardinal Joseph Ratzinger (who was to become Pope Benedict XVI) and philosopher Jürgen Habermas met in Munich to discuss the pre-political foundations or sources of the secular state (Ratzinger and Habermas 2018). This debate, which received much attention, explicated the central question behind the – admittedly often superficial – preamble debates. What is the source of the law’s validity and who should be permitted and capable to judge the legitimacy of the law? We must note that the notion of pre-political foundations is of particular importance in Germany and interwoven with Carl Schmitt’s theory of the primacy of the political over state and law. It has been famously reframed by the legal scholar, committed Catholic thinker, activist, and long-time constitutional judge Ernst-Wolfgang Böckenförde. In 1964 he formulated the so-called ‘Böckenförde-Theorem’, according to which ‘[t]he liberal, secularized state draws its life from preconditions it cannot itself guarantee’ (Böckenförde 1991). Böckenförde was guided by an understanding of religious freedom as a strong right and state neutrality as a form of open neutrality that can be used to recognise and accommodate a wide range of groups and convictions. Both approaches combined should make the liberal, secularised state acceptable for religious people and groups and encourage them to understand their values and belief systems as foundations of a liberal social order (Sacksofsky 2019). In political discourse, however, his ‘theorem’ has since been used without context. The churches and Christian-democratic politicians quote it to emphasise that the state cannot exist without the moral substance that is guaranteed by a Christian culture. In doing so, they transform an invitation to engage with pluralism and religious diversity into a demand for cultural homogeneity (Große Kracht and Große Kracht 2014).

Ratzinger took up this line of interpretation of Böckenförde when he stressed that a sense of natural rights and natural law takes ideal and historical precedence over positive law, and that natural law is best expressed through the Christian faith and tradition. In his view, it can be the encompassing basis of any modern constitutional state and a safeguard for the preservation of human dignity. Like others before him, he argued for the inclusion of religious(ly inspired) arguments in secular affairs. In doing so, he came to similar conclusions as Böckenförde. But unlike him, Ratzinger tried to make clear that natural law comes before secular or positive law. Habermas, in contrast, argued from the perspective of a mature liberal state. In his view, we can no longer speak as though the state and the rule of law were to be created in the future. Instead, we have to argue ‘from within’ and ask what nourishes and sustains the normative resources necessary to maintain the liberal state. Still, Habermas continued to functionalise religious communities for this purpose, though he insisted on drawing a strict line between faith and reason. In this sense, he defends the exclusion of certain value-based arguments from political and legal discourse in order to preserve a discursive enterprise that meets the standards of a rational discourse that can be used to ground legal arguments and principles within the boundaries of a constitutional system.

We have seen that the rule of law can be understood as an ethos or as an ideology that is built on a complex web of social conditions. In its ideal form, it is conceived as institutionalising openness and uncertainty. Doing so, it enables us to create, reflect on, and question social values and their power (Müller 2021). In this section, we have seen how this open concept can become a guiding motive of politics, but we have also seen how it can be closed. It is especially important to note the difference between framing particular experiences in universal language and just positivising particular views. At the same time, the Habermas–Ratzinger debate shows how such debates are intrinsically linked to our takes on the sources of normativity in general. They can make us aware of the deep societal implications that such debates and arguments can have. It remains to be seen what influence such debates have on actual legal practice.

4 Values Enshrined and Values Contested

In the preceding sections, I have discussed several fundamental issues regarding the relations between legal and value debates. I have done so with reference to political debates and developments that are also considered in other chapters in this volume (Weymans et al., Chap. 3, this volume). We have seen too how particular value conceptions are explicitly laid down in legal texts and what might be intended when this is done. The example of the Habermas–Ratzinger debate has introduced us to the philosophical considerations behind such controversies and raised the question of which arguments should be recognised and why. I have referred to examples that are quite well known, as they are taken from general political history, the development of the European Union, and recent value debates on national and European level. Those examples are discussed in academic literature and in the media. They are accessible to various disciplines and communicate a broad picture of the rule of law, rights, and legal systems. But they do not convey much about the inner workings of the legal system, of administrative bodies, and of courts. In comparison, particular legal norms, court rulings, and legal erudition seem inaccessible, complicated, and prone to misunderstandings and misinterpretation. They are, as has been stated above (Sect. 11.2) the domain of experts.

Recently, political theorist Jan-Werner Müller has drawn attention to intermediary institutions of democracy (Müller 2021). In his discussion of the current crisis of many democratic systems, he warns about convenient but ultimately misleading responses. In his view, it is inappropriate to focus either solely on the people and elites on the one hand or on abstract institutions and rules on the other hand. Instead, Müller argues for a renewed interest in the underlying principles of representative democracies which should be considered by looking at the intermediary institutions and the informal rules that structure the interpretation and application of the formal rules like constitutions, charters of fundamental rights, or procedural rules. In doing so, Müller assesses the role of political parties and the media in particular.

The same could be said about the rule of law and legal systems. Legal philosophy and legal erudition let us see only a small section of law in practice. They cannot tell us much about the ways in which laws are applied in practice, and what if any relevance theoretical and dogmatic debates have for legal practice. At the same time, it is conspicuous that we have a lot of research on how values evolve and change in general society, but little to no knowledge about the conceptions of values in the legal profession in Europe. This is even more striking when we consider the central role that laws are supposed to have in modern societies.

In this section, I will try to present an approach to legal thinking in practice and look at the underlying assumptions and dynamics. Again, I will discuss two exemplary questions that can illustrate how practitioners create legal meanings and maintain their institutional role.

How do lawyers and judges think about the law? Legal scholar and educationalist Martha Minow once compared legal thinking to children’s television shows that depict a group of items and ask young viewers to pick out those that do not belong with the rest of the group. Songs or rhymes that usually accompany such shows are meant to help children sharpen their vocabulary, perception, and analysis of objects in the world (Minow 1991: 1). She continued to explain how much of legal reasoning demands familiarity with legal terms, practice in perceiving problems through categories, and acceptance of the consequences assigned to particular legal categories. In essence, the core of legal analysis is the simplification of a given problem to focus on a few traits rather than the full complexity of the situation, and to use those traits for comparison with the governing rules, court rulings, and legal erudition that could apply. This does not at all deny that legal analysis can be extremely complex and that it requires substantial expertise. But it points out that legal proceedings in particular are concerned with framing a problem in either/or terms and act as though the categories used just exist.

Such an approach should not be dismissed at first sight. In fact, it has many merits, and can be one of the central pillars of an independent and impartial judiciary. The usage of a given set of rules, methods, and concepts and their integration in an institutional context make legal practice comprehensible and professional and public review and debate possible. There are at least two aspects that must be considered when we talk about legal reasoning. A legal norm must always be interpreted and applied in the systematic context of the law and the legal system as such. Those who interpret and apply legal norms must do so solely on the basis of its wording, other legal texts, and legal erudition. They must accept that the state organ that has enacted the legal norm is its author, but they must never approach legislators, other judges, or administrative organs and inquire as to what they meant when they wrote the text of the norm. This characterisation may sound naïve, but it is not. When we think of laws that shall enshrine specific political convictions and intentions, we might conjecture that politicians foster quite opposite views and expect that any court or state body must execute the norm as they expected.

But how does legal interpretation work? How can legal practitioners assign meanings and categories? First, legal interpretation is based on careful reading of a text and comparison with the use of words and concepts in other legal texts or ordinary language. Second, it aims to make out the purpose or telos of a specific regulation. Such analysis can be easier when the law or explanatory materials used in the legislative process comprise detailed explanations of the intended meaning or usage of words and concepts. Still, such explanations must be aligned with the normative text. It can become more difficult when there are no such explanations. Then legal analysis will rely on legal erudition or general knowledge. It might also be possible to consult experts in a particular field, but then again their knowledge must be translated in a way that allows it to be processed in legal ways. When it comes to values, such analysis can become extremely difficult, as values are essentially contested concepts and their use cannot be settled by appeal to empirical evidence, linguistic usage, or the canons of logic alone (Gallie 1956). But a court is obliged to decide any pending case. It cannot discuss various meanings or leave a question open. Some proponents of legal theory have thus claimed that a court decision in value-related questions is a kind of political decision, albeit one that has to meet certain procedural standards and consider the remit of the law and the court (Kelsen 1967). Others claim that it is a matter of principle to find the right answer. In this sense, legal philosopher Ronald Dworkin has devised the figure of the omniscient judge Hercules who is able to consider the whole body of law and moral reasoning in order to reach a decision that fits (Dworkin 1978). Still, in practice law is shaped by judges who are not omniscient and do not have the time for thorough research of every aspect of the law, ethics, and value debates.

In a first step, I will look at these problems from the perspective of constitutional courts and the Court of Justice of the EU. Both are courts that are highly esteemed independent organs; in other words, politicians will be reluctant to interfere, and the courts show a remarkable degree of resilience in the presence of political developments. In the next section, I will discuss them in view of the relations between complainants, courts, and the wider public.

I will start with the debates about end-of-life decisions, which are central to contemporary ethical and value controversies. In Germany, the criminal code did not prohibit any form of assisted suicide until 2015. Then the German Bundestag decided to prohibit assisted suicide services after intense parliamentary debate and expert consultation. This provision was challenged in constitutional complaints proceedings by, among others, associations offering suicide assistance based in Germany and Switzerland, persons with serious illnesses seeking to end their lives with the assistance of such an association, physicians working in outpatient or inpatient care, and lawyers advising on suicide-related matters. In 2020, the German Bundesverfassungsgericht (Federal Constitutional Court) ruled that such a prohibition is unconstitutional, as it infringes the general right of personality in conjunction with the constitutional guarantees of human dignity, which encompass a right to a self-determined death (Bundesverfassungsgericht 2020). Here we are faced with thick moral concepts such as dignity and self-determination and the attempt to achieve reasoned consensus in a democratic debate. But the Bundesverfassungsgericht sees itself as committed to legal reasoning alone. Thus, it based its decision on a reading of precedents and legal erudition. The latter is characterised by long-standing debates about the legal concept of human dignity and the quest to define it without any reference to specific philosophical or theological interpretations, in order to avoid the dominance of any particular conception (Tiedemann 2014). In this way, human dignity is defined as comprehensive freedom and autonomy. Of course, this is a moral position as well, but as it has been derived by means of legal reasoning it shall not count as such. Interestingly, the court had heard psychologists who informed it about the situation of lonely older people, and it studied statistics on suicide and euthanasia in various countries. But it holds the firm view that it may make its cases only on what it counts as legal reasoning.

My second example relates to the conflicts about the defining values of the EU which are addressed in various forms throughout this volume. They have an explicit legal basis in the Treaty of Lisbon 2007, which rebranded the former ‘fundamental principles’ of the Treaty on the European Union as European ‘values’ (Kochenov 2017). These encompass respect for human dignity, freedom, democracy, equality, rule of law, and the protection of human rights, which are now posited as widely shared and deeply rooted normative orientations and thus transcend the sphere of merely legal matters. It remains, however, unclear as to whether the term ‘value’ is to be understood as vague and open or clearly defined (Itzcovich 2017; von Bogdandy 2019). Thus, it is not clear how values can be operationalised by the courts and if they are justiciable at all. In Sect. 11.2, I discussed the challenges of the EU’s fundamental order by the turn of Hungary and Poland to illiberal constitutionalism. While it is possible to assess this turn as a breach of the EU’s fundamental values on political and theoretical grounds, it has proved extremely difficult to judge and counter them on procedural grounds. In other words, has there been a breach of law? Again, the standards of legal reasoning must be met, and reference to ethical, moral, or political concepts must be avoided. In this situation, the Court of Justice of the European Union decided to focus on procedural safeguards. This means it did not pronounce on the question of values itself as might be expected from preceding and accompanying political debates, expressions of political will, or reference to a common ethos. Starting in 2018 in the cases Associação Sindical dos Juízes Portugueses (ASJP) and LM (Deficiencies in the system of justice), the Court of Justice has begun to infer standards for the independence of all national judges and the right to an impartial court and a fair trial from an interpretation of various articles of the Treaty of the EU in light of the fundamental values. In doing so, the Court identified legal rights that implement and safeguard those values. By reference to procedural criteria that are either met or not met, it can do so in an objective and reviewable way and avoid vagueness and political instrumentalisation. But such an approach can only serve the cause of safeguarding the fundamentals of the European legal space, as Armin von Bogdandy points out. It cannot indicate a ‘right way’ or understand values in the theoretical sense of ‘optimization requirements’ (von Bogdandy 2019).

I am aware that this section stands in remarkable contrast to the preceding ones. While it might be possible for most readers to follow the general introductory remarks on legal practice, they will find it more complicated to grasp the examples from recent court decisions and connect them with the equivalent value debates. In fact, the court decisions may seem far removed from other debates and built on a completely different epistemological basis. Some readers, I expect, will even have doubts about whether or not complex ethical decisions like assisted suicide should be left to the courts at all. On the other hand, we might ask how and under which circumstances legal institutions and legal practice can be engaged in value debates, and how such an engagement could sustain and strengthen both sides.

5 Our Laws and Their Values

If we want to understand the relations between law and values more thoroughly, we must consider how law is used as a means of argument in value conflicts. Here again, courts and judges stand in the centre. But it can be misleading to focus solely on their decisions as is common in legal academic debates. Courts can only decide cases that are brought before them. They are under an obligation to consider the arguments of the complainants. This is the point at which we encounter the essentially democratic function of law courts, as they allow anyone to present their arguments in a specific conflict and demand that a state body must duly and rationally come to a decision (Stourzh 2021).

In this last theoretical section, I will expand on the perspective of the courts and include those who claim their rights and mobilise law as a means of communicating and resolving social and value conflicts. Again, we are confronted with complex and highly dynamic constellations. Here, I will discuss cases that relate to religion in the public sphere and growing social pluralism and diversity. In many European countries and on the European level, supreme and/or constitutional courts have become focal points of public debate about rights and justice. Their decisions are met with popular opinions on topical matters, and they risk being criticised for either political appeasement or their ‘opposition’ to majority decisions (Corstens 2017). In effect, we are confronted with various layers of ‘politics with the law’ and ‘politics with the court’ (Konrath 2013). But a state under the rule of law rests on two pillars: democratic majorities that can enact and amend the law and individuals who can individually ‘set legal system in motion’ by going to court (Stourzh 2021: 62).

The transformation of European societies through immigration, religious and cultural pluralisation, and secularisation have been at the centre of political communication and conflicts since the late 1980s. This has led to ever-stricter immigration laws on the one hand and on the other hand attempts to ‘neutralise’ social spaces by attempts to enact and the actual enactment of bans of certain expressions of religious and cultural plurality. This leads to tensions with constitutional guarantees to safeguard equality and freedom within a pluralistic and democratic society. When we consider the history and the foundations of modern democratic societies as a struggle of recognition of individuals as bearers of equal rights (Honneth 1992), we should presume that it is the foremost task of politics to debate and resolve those tensions. However, those who are most affected by such conflicts will rarely have a voice or find broader support in democratic politics. In a democratic state under the rule of law, they can, however, bring their case before a court. Since the 1990s, constitutional courts, the European Court of Human Rights, and the Court of the European Union have thus become the main fora to consider matters of religious and cultural conflict and to decide cases in which an infringement of the associated freedoms was claimed (Sacksofsky 2019).

The most notable and controversial cases have been concerned with headscarves, burqas, and crucifixes. Various courts have given highly diverging answers. Bans on headscarves for teachers in Germany were held unconstitutional in general and admissible under very specific conditions, while the ban on headscarves for clerks in judicial courts was considered admissible. In Austria, the ban on headscarves for minors was considered unconstitutional. On the other hand, the European Court of Human Rights upheld headscarf bans in France and Switzerland, but ruled that crucifixes in public schools in Italy do not interfere with state neutrality.

Claimants and lawyers who pursue such cases are confronted with four challenges: (1) They must explain in legal terms why a state measure infringes their rights. (2) They must provide contextual knowledge, as a headscarf or a cross can be read in multiple ways, and they cannot presume if and in what sense the judges are familiar with those readings (e.g. religious meanings, cultural traditions, expression of self-identity, group affirmation, etc.). (3) They must take into account that many courts, in particular the European Court of Human Rights, decide cases in light of what they regard as the value context of a given legal order (e.g. the French laïcité or the traditional partnership of churches and state in Germany). (4) They must be aware that they are part of a wider political debate that can, at least for the moment, only take place at court. There is a chance that the debate might meet the criteria of rational deliberation and avoid political rhetoric and escalation (Lafont 2020). But there may also be a risk that the judges get caught up in political attitudes and prejudices that they will ultimately mask with legal arguments (Baer 2021).

Given this complex situation, the ideal vision of the rule of law that empowers the individual to become a ‘single mover of the legal system’ can be distorted when we look at cases like these. In public debates, the ‘movers’ risk being regarded as persons who either want to create conflict and adversarial relations between minority and majority groups or as people who aim to undermine the legal and social order in order to pursue their political mission and establish an Islamic regime (Marzouki 2017). Even more so, the claimants’ religious background or references to religious laws may come to be seen as a threat to a single unitary body of law that is (variously) also understood as an expression or even embodiment of an enlightened Western society.

But even when it is clear that legal language translates but does not initiate legal conflict (Minow 1991: 291), we have to concede that it can transform the conflict in unintended ways. As we have just seen, the Islamic hijab or the Christian cross can be understood in multiple ways, and the same is true about a lot of other conflicts in pluralistic societies – from co-educational schools to cultural dietary rules.

However, when you decide to go to court, you must identify what right has been violated. As most European states and the European Convention on Human Rights do not, for example, acknowledge explicit ‘cultural rights’ or foresee only a narrow scope for their application, you (or your lawyer) will decide to claim a violation of the right to religious freedom, which has a very broad scope. But a conflict will then immediately become one between state and religion and narrow the ways to confront the actual conflict and any future conflicts in this field (McIvor 2020).

Finally, there is the question of who will claim their rights at all. Every legal proceeding – and as we have seen especially those that concern value questions – must consider the risk of losing. A lawsuit demands financial resources, a committed and talented lawyer, and endurance. It may take years for a matter to come before a supreme court, a constitutional court, or even the European Court of Justice. Also, any claimant will consider what their claim means for the work and social environment. These are factors that limit the scope of the rule of law and that are part and parcel of ‘politics with the law’: even if legislators know that a law might be discriminatory, they know also that it will take at least 1 year and often much longer before a court will confirm discrimination. And then politicians can still claim that it was a court that prevented them from pursuing their goals.

There is one more aspect of such conflicts that calls the idea of impartiality of the rule of law into question. Martha Minow discussed this with regard to court cases on equality and difference – in the family, in schools, in the health system, and in the workplace. She argues that legal judgments will more often than not rest on unstated assumptions that hold differences as intrinsic rather than as expressions of comparisons. They will adopt unstated points of reference and will not take the perspectives of those being judged into account. Finally, they assume that the existing social and economic arrangements – including the law itself – are natural and neutral in a sense – and so must be their reasoning and judgments (Minow 1991: 50–78). In such a way, judging and ruling can be imbued with personal value judgements and world views regardless of the strict adherence to legal methodology.

In that way, legal discourse can be conceived as isolated from other social, political, or academic discourses. Legal practitioners can claim that this isolation guarantees independent and neutral decision-making. While this will certainly be true to some extent, it may also be used to mask other interests and avoid epistemological questions regarding what they need to know about the matter at stake before they can reach a well-founded decision. At the same time, legal institutions create or perpetuate social and political reference points that can be perceived as neutral and objective.

In a famous discussion of decisions of the US Supreme Court on religious minorities, legal scholar Robert Cover spoke of ‘jurisgenerative’ and ‘jurispathic’ powers (Cover 1984). He argued that the creation of legal meaning is a creative process that takes place in the social sphere, as do the claims of Muslim women presented above. But Cover conceded that there must be institutions that address the problem of the multiplicity of meaning in the interest of social stability. The question is how this is done. Cover’s ideal was that of ‘commitment’ to law as hermeneutic social practice, which he (who was well versed in rabbinic studies) compared to Jewish legal discourse and to the civil rights movement. But his genealogical pursuits and erudite analysis of US jurisprudence led him to different views. Thus, he asked whether courts effectively apply a practice of exclusion. While it may be efficient in standard cases to get to the point at which the court will in effect destroy the legal status of others in complex cases such as those regarding end-of-life decisions (see Sect. 11.4) or religious freedoms, in the end a court or judge alone has to decide whether the economic interests of the employer, the broadly debated ‘symbolism’ of a piece of cloth, or the individual motives of the person going to court are relevant (or irrelevant) for ‘making the case’. Every narrative fixes a course of events or the meaning of a law and thus obviates everything that failed to become part of the story. In that sense, Robert Cover warns that judges are prone to becoming people of violence who do not create law, but rather kill it.

In this section, we have finally come to a point at which we see disputes and fights over values ‘on the ground’. We know from theoretical and empirical value research that it can be comparatively easy to identify conflicts and developments on rather aggregated levels. In contrast, the legal realm provides us with the opportunity to follow concrete cases and developments and perceive the circumstances and contingencies of value and norm creation. They can also provide us with the opportunity to find out how various institutions and actors understand certain values and on what epistemological basis they do so.

6 Outlook

This chapter began with the observation that human rights and the rule of law are integral to value debates in Europe. But these debates are rarely connected with discourses about the law and legal practice. I have attempted to introduce various layers of discourse on rights and the rule of law and discussed the roles and conceptions of the intermediaries that shape, communicate, and maintain them. I have done so from a position that aims to perceive, to understand, and to promote the rule of law in its social context. In the end, I could only present small parts of a vast area of law as a social phenomenon. But in doing so, I tried to make accessible a complex field of theory and practice that is full of dilemmas, contradictions, and paradoxes. Legal debates and value debates have a lot in common. They influence each other, and in many ways neither can be held without taking the other into account. Nevertheless, they must be clearly distinguished from each other. Here, I have tried to identify connection points between the two realms that merit further reflection and analysis.

This volume underlines the significance of value debates in sha** a European social order and confronting or reflecting social change. As we can see here and in other chapters of this book, value debates can sideline or trump legal debates that should, if taken seriously, be connected with value debates. Isolating them from each other – be it in politics or academia – may be a risky endeavour. Connecting them will be challenging, especially when we think of the abstract and seemingly neutral conceptions of law that dominate discourse together (and at points paradoxically) with merely instrumental views. Thinking about law, we will always be confronted with the unresolved relation between its facticity and validity that cannot be explained easily (or even at all). But it may be just that tension and the tension between laws and values that provide the ground for the richness and creativity of the rule of law, human rights, and legal discourse as safeguards of human dignity, social diversity, freedom, and justice.