The Gazette 1972

[EUROPEAN SECTION

Lawyers and European Communities

by PROFESSOR

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".

is not the splendour of Burke's prose, but

the scope of the main theme which is in my mind at

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

touched

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

faced

a new legal order which,

they are to serve their

clients well, they will need to know and will need to

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

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.

is tempting to cast one's eye back

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

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.

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

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

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.

you change the conditions, then the rules must change.

wyers must then, in this new setting,

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

th~

evolution of accepted and accept–

able SOCIeties. In saymg that, of course, I am not denying

that in

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

served, and further that Community law is consistent

with those purposes, or else my interest

it would

not

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