The Gazette 1972

[EUROPEAN SECTION Lawyers and European Communities by PROFESSOR J. B. MITCHELL

Text of a Lecture given in Queen's University, Belfast, on 24th February 1971 (Reprinted by kind permission from the Northern Ireland Legal Quarterly) PART I

(Footnotes appear at the end of each part of the lecture) Once in my foolish youth I approved as a title of a thesis "The sublime-with special reference to Edmund Burke". It is not the splendour of Burke's prose, but the scope of the main theme which is in my mind at ~e moment. "Lawyers and the European Communities" IS a theme of like dimensions, since for lawyers of all types the fact of British membership would have wide– ranging consequences. At one end of the scale. for e~ple, the relationship between customer and nation– alized industry becomes subject to new aDd more effective rules of competition; at the other end, regu– lations governing the social security benefits of migrant Workers can clearly affect simple individuals. Between these extremes the range of rules which could be touched by Community law is such that it would require an encyclopaedist to treat them all, and he certainly could not do it within an hour. I am no encyclopaedist. in– stead I want to emphasize certain fundamental char– ~cteristics of Community law, and to demonstrate their unplications for national legal systems in general and our own system in particular. For lawyers will be faced b~ a new legal order which, if they are to serve their clients well, they will need to know and will need to be able to apply it and to blend two systems-national and Community. This is an opportunity which they should welcome, for within this new setting law assumes a mUch greater significance than currently it does with Us. The Communities are. of necessity, highly legal structures and their law, as I have indicated affects not Illerely States but individuals. Enlargement of freedom Let me be clear. By "affects" I do not mean affect ~dversely, far from it. Through the corpus of law, the ~dividual may well receive stronger protection of his Interests than that which is at present available to him under his national system as it exists. Thus there arises an enlargement of his freedom. This is, however, not Illerelya matter of lawyers serving their clients efficiently -:-there is much more to it than that. The lawyer in this SItuation finds himself liberated and engaged in a much ~ore rewarding task. Law and hence lawyers regain a Onnative role, which once was theirs but which has ahnost disappeared. It is tempting to cast one's eye back t~ the great formative periods of the common law, when eIther through major constitutional decisions lawyers Were contributing to the essential shape of the Kingdom, Or else through a whole range of decisions in commer-

cial matters, or even in real property. they were contrib– uting to the economic and social shape of the Kingdom. Those activities were possible in a political society which was steadily evolving, but they later declined. Internally this role has ceased to be significant-either it is said that equity is past the age of childbearing, or else, by Lord Devlin, that the common law has no longer the resilience to deal with the problems of modem govern– ment. 1 In the Communities a fresh opportunity occurs. Once again a new political society is being formed, and once again law and lawyers are essential to its formation. It has even been said that it is the lawyers who will finally make Europe if only the politicians will listen to them. This then is the challenge, but it would be absurd to assert that lawyers can accept it, or regain their place in society, unless they will both re-examine their own pre-suppositions and learn the nature and broad purposes of this new law. Fundamental legal doctrines relative These matters form the substance of this"lecture. but before dealing with them I must make another prelimin– ary observation. Lawyers must keep legal doctrines in perspective. By this I mean that many of their doctrines, including some which any particular society may regard as being fundamental. may indeed only be so in a relative sense. They relate to that particular society, to its history and to certain conditions within it, but do not have the character of one of the eternal verities. 2 If you change the conditions, then the rules must change. La wyers must then, in this new setting, be prepared to ask themselves what is the object or the conditioning cause of many of the rules which they have been brought up to accept, for law is the servant of society. It is wrongly regarded when by reason of dogmatic adher– ence to doctrines, which lack eternal virtue. it is used as an o~st~c1e to th~ evolution of accepted and accept– able SOCIeties. In saymg that, of course, I am not denying that in ~e western world there are fundamental pur– poses whIch the law should serve. All I am saying is that there are many ways in which those purposes may be served, and further that Community law is consistent with those purposes, or else my interest in it would not be ~s it is. Certainly, having moved from system to system m my career. I accept that adaptation of patterns of thought may not always be easy. Without disrespect, any monkey that has learnt one set of tricks may take less easily to a change in its repertoire. Nevertheless, I

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