EU Law as a Creative Process : A hermeneutic approach for the EU internal market and fundamental rights protection

Abstract

What stories about the world and about the people in it do we find in the legal reasoning of the Court of Justice of the European Union? The underlying stories in all kinds of human communication, including the law, tell us something about the worldview and the vision of humanity of the author(s). How does EU law speak about human agency and responsibility, particularly in the way in which economic interests are weighed against fundamental rights? What kind of role, what ‘self’ does the Court perform in its judgments, and how does it speak about the ‘other’?

This book invites the reader to think of the practice of EU law as a creative process. From such a perspective, the work of the Court is a cultural, literary activity, in which readers can imagine themselves participating. Thinking about the quality of legal reasoning becomes a process of ethical self-reflection, preparing jurists for future challenges that the EU legal order faces. In her dissertation, Pauline Phoa develops a new methodology to examine the textual performance of the Court, by combining the work of American ‘Law and Literature’ scholar James Boyd White with the work in hermeneutic philosophy of French philosopher Paul Ricoeur.

Two case studies, one on economically inactive EU citizens’ access to social benefits, and another on data protection and privacy, demonstrate the way in which this methodology can be used. They reveal two contradictory narratives that are at play in the case law, which raises questions about the coherence of EU law.