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New pages in history of state and law
Ole Hasselbalch
In 2010, I lectured on Danish legal tradition vs. the EU. I stressed that Danish society is based upon the principle that law-making should take place according to the wishes of the people crystallized either by the citizens themselves by way of agreements or by custom and practice or by Parliament. Other pillars of Danish society is the incorrupt Government/public administration that administers the body of laws made on this basis and a reliable court-system to apply existing law in case of concrete disputes. I said that the EU poses a threat to this: the EU represents a huge number of inhabitants and EU-law is based upon the legal tradition of Central Europe. The distance between the "floor and the ceiling" has increased considerably on the EU-level. This gives rise to risks that policy-making at the EU-level is not based upon the same proximity to the problems of the common man as law-making on the Danish scene. Therefore there is a risk that the European politicians are tempted to involve EU in subjects that are more interesting to them than to ordinary people, to get lost in details which are comprehensible to them but uninteresting to others and to demonstrative resolution-making instead of sticking to the most urgent needs. Another problem is that the EU sets up substantial ideals for the Europeans to abide by and does not limit itself to secure basic rights of the individual. Finally, the European Court of Justice itself admits that it creates new laws to a degree quite different from what a Danish judge does - its adjudications are "dynamic", meaning that court-practice might deviate over time from what has been blue-stamped by the EU-legislator.
These problems have been further stressed by the economic crisis and the following collapse of illusions: the EU and the introduction of the EU legislative methods were insufficient to meet the needs of societies under economic pressure. No alarm signals came in due time - on the contrary to some degree the ability to hear such signals was neutralized.
So far EU law has not affected the key principles in ordinary law on public administration and law of contracts in the Member States. But in some countries constitutional law has including Denmark been stretched to the very limits. In addition, a virtual tsunami of EU-legislation on all sorts of special matters has been staged - environmental law, labour law, competition law etc. etc. In fact most Acts that are nowadays passed in the Danish Parliament are based not upon independent consideration and decision-making by the MPs themselves but on decisions taken by the EU. This EU-legislation is normally detailed to a degree which seems to put rule-making itself in the center and not the substantial needs behind the rules - EU rule-making in itself has been turned into some sort of art. Moreover the extreme "detailization" fits very poorly into traditional Danish legislative technique. Even experienced lawyers are often unable to handle EU-based law in a meaningful way.
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Правовая культура личности и нравственность
In other words: in numerous areas, the Danish Parliament is not responsible for the legal state of affairs any more. Instead, responsibility has vanished - disappeared into the EU administrative and law-making system where only few can be held responsible for anything. Nothing substantial in the tsunami of EU-directives, decisions etc. prevented the economic disaster from happening - no one in the EU even foresaw the crisis before it materialized. So people ask themselves: what then is the good of all this?
On the basic level, not only Greece but other EU-countries too are now facing a state bankruptcy. Legislation on banking and credit-giving has not lived up to the needs of an over-heated economy based not upon productivity, but rather on empty values of real estate. The open borders resulting from the EU Schengen-agreement have proved to be a honey nest for criminals and vagrants of all sorts to fill their pocket by cross-border activities which the police cannot control. In addition an overwhelming immigration from Africa and the Middle East - which until recently has even been supported in numerous ways by the EU - has overburdened the health-security system, the public pension system, the public schools and the resources of the police.
Therefore, there is a growing feeling among ordinary Danish citizens that the political course of the last decades has not been a success and that the present legislation does not meet the needs of society. The economic crisis has added to this feeling, causing a widespread dissatisfaction with the present state of affairs. Mistrust of authorities has - again - penetrated the public mind.
However, as usual the Danes are patient and "waiting to see". They are mentally moderate and don't express in blunt words what they mean. Political change therefore usually happens slowly and the silent revolutions of the minds triggering such change often explode suddenly without showing themselves coming to the surface beforehand. This also applies in the present situation: people speak of the insufficiencies but don't react accordingly on the political level. Instead, they "vote by their feet" - for instance by making private insurance arrangements, by extracting their kids from the public schools and paying private education instead, by moving away from areas where immigrants have settled down, etc. etc.
Alongside, Parliament slowly has been forced to change its course. In order to stay in government - or gain governmental power - since the 2001-election, it has been generally accepted by top-brass politicians that you must admit publicly that the immigration policy of the Eighties and Nineties was a failure. After the economic crisis, the same politicians admit that legislation on banking and credit giving has been insufficient. Respect of the EU has also declined even at the official level - resulting recently in a parliament-decision supported by all the big parties that border-control should be reintroduced. This in spite of a lot of howling from the EU, from the usual EU-supporters and neighboring countries and even in spite of what some say are the mandatory rules of the Schengen agreement. Also a strong current has appeared in the public, which might sooner or later force the
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politicians to ignore claims from the EU to abide by EU-regulations and rulings of The European Court of Justice that are not in harmony with the Danish Constitution and more sensible legal tradition. A couple of prominent law professors have formally suggested to take such a step - a few years ago it would have been unthinkable even to suggest that there is a gap between the EU-legal system and the Danish Constitution.
What could lawyers learn from this?
Well, first of all they should learn that proper law making is not a sort of play -something which could be performed according to discretion or any rules which fit somebody's political ideas, personal taste or inclinations. Thus, law-making should never disregard the constitutional ideas upon which a modern legal system has been based due to hard-won experience of previous generations on what it takes to make a society run smoothly, effectively and to the benefit of its citizens. Moreover, lawyers could learn that political "glittering generalities" and slogans cannot replace the basic constitutional rules which form the mechanism through which the needs of real life and down-to-earth needs of ordinary people have hitherto been channeled and transformed into formal legislation.
In consequence, in countries where the "rule of law" in principle applies as a basic tool for running society instead of political or religious ideologies, lawyers should also learn that their task is not to help politicians to build upon illusions. On the contrary: they should never assist in creating law based upon ideas which do not mirror the actual needs of society and the basic constitutional principles of how new law should be created. Instead it is their obligation to keep a firm hold on the realities and the demands of proper law-making, which have formed the basis of the success of democratic societies up till now.
