Conference 1 - Roberto Cisotta - The dialogue between the Italian Constitution Court and

the CJEU

A common judge has the authority to suspend proceedings and request the Constitutional Court to
examine a question of constitutionality. Similarly, the preliminary reference procedure outlined in
Article 267 of the Treaties mirrors this approach when a judge across the Union harbors doubts
regarding the legality or interpretation of EU law.

Although the preliminary reference procedure was inspired by the Italian constitutionality question,
the Italian Constitutional Court has been hesitant to refer questions through preliminary references
to the Court of Justice.

The court's stance has historical roots in its interpretation of the primacy principle articulated by the
Court of Justice of the European Communities at the time. The acceptance of this principle was
facilitated through the interpretation of Article 11 of the Italian Constitution, which was originally
formulated for Italy's participation in the United Nations. Article 11 states that Italy, on an equal
footing with other states, can accept limitations on sovereignty to establish an international order
fostering peace and security.

While Article 11 was initially crafted for the United Nations, the Italian Constitutional Court extended
its applicability to the European integration project. It acknowledged the parallels between the aims
of the UN and the European communities, which were established in the 1950s to reconcile post-
WW2 tensions between France, Germany, and other founding members. These communities aimed
to manage markets, starting with coal and steel, to prevent conflicts and promote economic growth.
Leveraging Article 11, the Italian Constitutional Court granted Italy the opportunity to join the
European communities, a legal basis still utilized for its participation in the European Union today.

The Italian Constitutional Court faced difficulties in embracing the primacy of EU law. Its stance was
rooted in the belief that while they could incorporate community norms into the national legal order,
these norms, even when entering directly as regulations, should not be deemed superior to duly
approved national internal norms. The court contended that the chronological succession of norms
should be considered; if a domestic norm, sanctioned after a European piece of law, existed, it should
take precedence. This position diverged from the formulation of primacy endorsed by the European
Court of Justice.

After some other judgments in which the Italian Constitutional Court tried to open up to the these
new dynamics of the in European integration then, we had a final point where or what was
considered a final point up to a few years ago, which is judgement 107 of 1984, the so-called granita
judgement.

The story here can be summarized concisely. The Italian Constitutional Court acknowledged the
primacy of EU law asserting that Article 11 provides grounds for this acknowledgment when the
European piece of law in question has direct effects. Consequently, there is no necessity to approach
the Constitutional Court to determine if the internal law contradicts the Constitution due to Article
11. In the past, the alternative approach was to open a constitutionality question. In this scenario, a
common judge would go to the Constitutional Court and acknowledge the succession in time, which
had been overlooked at some point. This process allowed the judge to question the constitutionality
of a law in contrast with Article 11. However, the Italian Constitutional Court eliminated this
possibility. Instead, it granted the common judge the authority, through Article 11, to directly set
aside the national norm in contrast with EU law, aligning with the jurisprudence of the Court of
Justice of the European Union.
Meanwhile, significant developments occurred. In 2001, a constitutional amendment was introduced
in Article 117, explicitly stating that both the national and regional legislators must adhere to
international and EU law, encompassing all constraints arising from the international legal order or
peace of law. This article is frequently invoked before the Italian Constitutional Court to argue that a
national law may be inconsistent with EU law.

While I previously mentioned that common judges should directly set aside domestic laws in conflict
with EU law, this approach is applicable primarily to EU laws with direct effects. In cases where there
are no direct effects and the objective is to nullify a national law causing issues for judges, a different
route must be taken. In such instances, recourse is made to the Italian Constitutional Court, which
possesses the authority to reevaluate and adjust the

situation. Unlike common judges, the Italian Constitutional Court can reshape the scenario, especially
when the EU law provision lacks precision, lacks direct effects, or presents other complications
requiring reconstruction.

Currently, two constitutional parameters, namely Article 11 and Article 117, coexist. These are
frequently cited in conjunction when it comes to EU law. In contrast, for general international law or
legal provisions originating from the European Convention for the Protection of Human Rights and
Fundamental Freedoms, only Article 117 is applicable. Despite this distinction, we possess a robust
constitutional foundation that governs our participation in the European Union, underscores the
acceptance of privacy, and addresses various related matters.

Initially, there was a general satisfaction with this state of affairs, as it seemed to have resolved all
significant aspects of the matter.

However, a procedural challenge emerged. The Italian Constitutional Court did not perceive itself as
a national jurisdiction under the purview of Article 267 of the Treaty on the Functioning of the
European Union. Consequently, it did not recognize its authority to submit a preliminary question to
the Court of Justice. As a result, the intricate dialogue between the national Italian Constitutional
Court and the Court of Justice was not straightforward. In certain instances, it was the national judge
who initially referred the question to one court and then to another, to the Constitutional Court, and
subsequently to the Court of Justice. Hence, the dilemma persists in deciding whether the better-
suited judge is the national constitutional judge or the European judge to consult when confronted
with a new legal question.

At some point, the Italian Constitutional Court revised its stance, acknowledging its capacity to
submit a preliminary question directly to the Court of Justice. This occurred not in scenarios where
questions were referred by a national judge, but rather in cases where the Italian Constitutional
Court was the adjudicating authority. As the sole judge in these instances, there was no other judge
to whom the question could be redirected. This situation presented a unique challenge, emphasizing
the imperative for a direct dialogue in such circumstances.

Nonetheless, after a span of years, the Italian Constitutional Court made a significant decision to also
submit preliminary questions not only when it was originally designated to rule on the case but also
when a legal procedure had been initiated by a national judge.

This marked a substantial shift because, in certain scenarios, the Italian Constitutional Court gained
the authority to pose queries to the Court of Justice. For instance, when there were no direct effects,
a national judge could request the National Constitutional Court to declare a national provision
incompatible with EU law. Subsequently, the National Constitutional Court would be tasked with
refining the situation and determining the applicable law in the given case.

The legal framework has undergone a certain degree of complexity. Let's take a retrospective look.
The jurisprudence of the Court of Justice concerning the protection of fundamental rights, dating
back to the 1960s and 1970s, was spurred by the assertions of the Italian and German constitutional
courts. They expressed their acceptance of participation in these new communities and European
Community law, provided that a system for safeguarding fundamental rights was established. This
was seen as crucial to ensuring that, despite relinquishing certain areas of competence, the citizens
would still be protected in the realm of their fundamental rights.

In the Grandal judgment of 1984, the Italian Constitutional Court issued a caveat, acknowledging the
primacy of EU law but emphasizing that there were instances in which it could intervene. These
instances primarily revolved around two key scenarios: when there was a threat to fundamental
rights protection, indicating that the primacy of EU law was functioning in a manner jeopardizing the
safeguarding of fundamental rights as ensured by the Italian constitution, or if a similar issue arose
concerning the guarantees of the general principles, albeit less precisely defined, of Italian
constitutional law. In such cases, it became the responsibility of the National Constitutional Court to
delineate these principles to a certain extent.

Counter limits denote these two specific scenarios in which the National Constitutional Court has the
prerogative to intervene. In practical terms, this implies that the Italian Constitutional Court can issue
a declaration of unconstitutionality concerning the Italian law that incorporates the EU treaties into
the national legal order.

Importantly, such a declaration may be partial, addressing only those specific legal provisions that
give rise to challenges within the context of these two significant categories. The technical
intervention stands out as a means by which the National Constitutional Court could actively involve
itself and intervene in these situations.

Another potential scenario exists, one that may not be conducive to the national constitutional order
and the protection of its fundamental guarantees. However, it allows for Italy's participation in the
European Union. This pertains to situations where a national law creates persistent and stark
conflicts with the Treaties. In such cases, there could be a declaration of unconstitutionality for that
specific piece of legislation, aligning with the provisions of Article 11 and 117. The grounds for this
declaration stem from the issues it poses concerning Italy's participation in the EU.

This framework, as you comprehend, is founded on the necessity to safeguard fundamental rights
and other essential constitutional guarantees. It aims to maintain the integrity of the Italian
constitutional legal order consistently. Moreover, it involves fostering a dialogue between the
National Constitutional Court and the Court of Justice, a dialogue that was not direct until a time very
close to the present.

Now, as widely known, the Charter of Fundamental Rights of the European Union was adopted and
proclaimed in 2000. It gained status as primary EU law with the Treaty of Lisbon, entering into force
in 2009.

This development brought about a subtle shift in the framework, preceding the Charter of
Fundamental Rights. The Court of Justice had, even before the Charter, established jurisprudence to
ensure the protection of fundamental rights. The Italian Constitutional Court played an active role in
influencing these developments within the Court of Justice's case law. Simultaneously, the Italian
Constitutional Court refined its stance on primacy, eventually finding common ground with the
European Court of Justice, notably in 1984, as mentioned earlier.

Once this framework for the protection of fundamental rights gained more structure with the
implementation of the Charter of Fundamental Rights of the European Union, the Italian
constitutional judges recognized the evolving scenario. They acknowledged that with the
establishment of a direct dialogue with the Court of Justice of the European Union, under the
conditions of met requirements for the primacy of EU law, it holds true that a shared judge can
invalidate a national law conflicting with EU law – a positive development.

However, the Italian judges emphasized a nuance. In cases involving fundamental rights, they
asserted the possibility of reasserting their role and intervening if the question of fundamental rights
arises, adding an additional layer of consideration to the overall legal framework.

This stance was articulated in judgment 269 of 2017, and subsequent judgments have further refined
this approach. In this particular judgment, the Italian Constitutional Court essentially urged the
ordinary judges to submit questions of constitutionality to it and decide to invoke the counter limits.
These limits specifically pertain to cases concerning the protection of fundamental rights and the
fundamental principles of Italian constitutional law. Though the focus is primarily on fundamental
rights, the Italian Constitutional Court retains the authority to decide whether to submit a
preliminary question to the Court of Justice, or alternatively, the national judge may exercise this
option.

Following this pivotal juncture, there emerged an inclination to direct the national command judge to
refer questions directly to the Constitutional Court. Additionally, there was a consideration of posing
further questions through the Court of Justice, although this aspect of the judgment remains less
clear and potentially subject to revision. Nevertheless, it remains a constant truth that the national
ordinary judge retains the freedom to pose questions either to the National Constitutional Court or
as a preliminary question to the Court of Justice.

The source of extensive scholarly discourse is the so-called Taricco saga, an intricate series of rulings
involving Italian common judges, the Constitutional Court, and the CJEU, with the process extending
back and forth between national and supranational jurisdictions. The focal point of this saga was a
modification in national law concerning the time

limitations for prosecuting criminal offenses related to value-added tax (VAT). This alteration raised
concerns among national judges about the constitutionality of the laws in question.

The crux of the matter lies in the financial interest of the European Union tied to VAT. The
amendments, particularly the shortened time limits, at times jeopardized the feasibility of
prosecuting individuals involved in criminal offenses related to VAT. The national judges grappled
with a constitutional dilemma, as the issue involved not only potential conflicts with EU law but also
intersected with the legality principle within Italian criminal law. In Italy, time limitations fall under
the legality principle, constituting a fundamental guarantee in criminal law. According to this
principle, a criminal offense cannot exist without a precedent law defining the crime, and the
definition encompasses aspects such as time limitations. This contrasts with other legal systems
where time limitations are considered procedural matters.

In the initial case, a common judge sought guidance from the Court of Justice, resulting in the Taricco
judgment. The Court acknowledged the dilemma in Italy but emphasized Article 325 of the Treaty on
the Functioning of the European Union. This article obliges Member States to enact laws that
effectively protect the financial interests of the Union. The Court argued that by shortening time
limitations, Italy risked undermining the ability to prosecute individuals and, in doing so, potentially
violated its EU obligations.

However, this CJEU judgment may exhibit certain shortcomings. While it is a preliminary reference
ruling, it communicates something to the national judge that lacks clarity. Notably, the Court of
Justice instructs the national judge to evaluate whether the reduction of time limitations might
jeopardize the prospect of prosecuting individuals in numerous cases. This directive presents a
challenge, as it goes beyond the scope of an infringement procedure. The national judge cannot be
reasonably tasked with predicting future scenarios or gathering statistics on the actions of other
judges. The role of the national judge is to resolve the immediate case before them, necessitating
clear and unambiguous rules to determine whether prosecution is warranted.

This issue poses considerable challenges. In Italy, a substantial confusion ensued as some judges
chose to adhere to the Court of Justice's directive by setting aside the national rule on time
limitations, while others were more apprehensive about upholding constitutional principles within
criminal law, as previously mentioned. Consequently, the matter was brought before the National
Constitutional Court, often referred to as "Consulta" due to its historical association with the former
Catholic Tribunal named Consulta.

Consulta, the National Constitutional Court, faced a dilemma and submitted a complex inquiry to the
CJEU. The inquiry essentially communicated the predicament: the clash between national criminal
law guarantees and the Tarico judgment. The National Constitutional Court sought guidance on how
to navigate this conflict. They expressed concern that adhering to the Taricco judgment might create
a challenging situation, potentially leading them to invoke counter limits, declaring the national law
that incorporates EU Treaties partially unconstitutional due to these issues.

The CJEU responded cautiously. It acknowledged the National Constitutional Court's predicament but
emphasized that if there were a problem related to the protection of fundamental rights, the
national law shortening the limitation period could still be applied. It's noteworthy that, from a
practical standpoint, the issue was somewhat mitigated as those limitation periods had been
extended subsequently. However, the core of the matter remained a principled concern, which,
despite practical adjustments, could still evolve into a significant challenge. Some interpret the Court
of Justice's judgment as a sort of authorization to implement the counter limits in such
circumstances.

What stands out prominently is the Italian Constitutional Court's consistent emphasis, expressed
emphatically, on the significance of the Charter of Fundamental Rights of the European Union.

Under normal circumstances, if the prerequisites for the effective operation of the primacy of EU law
are met, there should be no necessity to approach the National Constitutional Court. However, if the
Charter of Fundamental Rights is implicated in a case, the national judge is expected to refer
questions to the Italian Constitutional Court.

In several instances, the Italian Constitutional Court has taken these issues seriously and, as we've
discussed, entertained a multitude of questions. Nevertheless, there were instances where the
Constitutional Court concluded that there wasn't a substantial problem concerning fundamental
rights, and therefore, the established framework, exemplified by judgment 170 of 1984, remained
valid. In such cases, the National Common judge was entrusted with resolving the issue and nullifying
the national law in conflict with EU law.
An illustration of this dynamic unfolded in judgment #67 of 2022, focusing on a query related to
social assistance and families. In a concise yet unequivocal statement, the Italian Constitutional Court
declared that it did not perceive the relevance of the Charter of Fundamental Rights of the European
Union in this particular instance. Consequently, the question was referred back to the National
command judge, tasked with resolving the matter by setting aside the national law if the
prerequisites for primacy were satisfied. The Constitutional Court asserted that it had no further
pronouncements on the issue, leaving the assessment to the National Common judge.

Contrastingly, a distinct scenario emerged with another social assistance measure outlined in order
182 of 2020, specifically addressing the promotion of childhood and new births. In this case, the
question pertained to whether these measures should be extended to third-country nationals. The
complexity of the case involved various secondary norms of EU law, with Article 34 being a focal
point. The Italian Constitutional Court, in this instance, emphasized the relevance of Article 34 and
decided to seek guidance from the Court of Justice of the European Union. They were explicit in
stating that Article 34, as a provision of the Charter of Fundamental Rights, obliged them to inquire
whether EU secondary law mandated the extension of these measures to third-country nationals.

Interestingly, the Court of Justice's response, as seen in the OD case (C350 of 2020), highlighted a
distinctive perspective. While acknowledging Article 34, the Court swiftly shifted its focus to EU
secondary law, deeming it sufficiently clear. The Court of Justice indicated that, in this particular case,
the provisions of the Charter of Fundamental Rights did not play a decisive role in settling the matter.
This reveals the different perspectives between the Italian Constitutional Court, which underscores
the Charter's relevance in its jurisprudence, and the Court of Justice of the European Union, which, at
least in this case, indicated that the Charter's provisions may not be paramount in the context of its
own case law and clear secondary legislation.

The dialogue is still going on.

Conference 2 - Amnon Lev - Crisis of the Rule of Law in the European Union

I will address 3 questions today.

 Wherein does the crisis consist?

 Why is it so critical to the EU?
 What can we and what can we not do about it?

Background: Hungary and Poland became EU members in 2004. While there was some
support for EU accession in Hungary, with only 45.6% of eligible voters participating in the
referendum, of those who voted, 84% were in favor. In Poland, 58.8% participated, and
75.5% of those voters supported EU accession. This resulted in both countries joining the EU
with a sense of inevitability but lacking overwhelming support.

In Hungary, Viktor Orban assumed power in 2010, and the EU initiated the first infringement
procedures against Hungary in 2004. These procedures were related to the forced personnel
changes in state institutions, deemed necessary by the Orban government to purge public
administration of socialist public servants. Poland's Law and Justice Party came to power in
2014, and since then, there have been notable similarities in the trajectories of Hungary and
Poland.

To provide a brief overview, both countries have aimed to limit the powers of the judiciary, a
particularly intriguing aspect of their actions. Hungary and Poland have subjected the courts,
and in Hungary's case, other independent institutions like the Public Prosecutor's office, to
increased political control. This has been achieved by reducing the retirement age of
appointed judges and replacing them with appointees aligned with the government's views.
In Poland, a Special Disciplinary Chamber has been established to sanction or terminate
judges who strike down government legislation or refer cases related to sensitive issues,
including the independence of the judiciary, to the Court of Justice of the European Union.
Other issues, such as obligations on NGOs to disclose foreign sponsors and attempts to exert
increased control over the media, further illustrate the commonalities between Hungary and
Poland.

This discussion will focus on Poland, as its challenges to the EU have significantly impacted
the established judicial system around the EU. In Hungary, the situation might be
characterized more as non-compliance at the government level.

From non-compliance to defiance.

Hungary has a history of facing numerous referrals by the EU Commission for violations of
the rule of law and non- compliance with EU mandates. In the case of Poland, the conflict
extends beyond the government level and involves the Constitutional Tribunal. In case 18/4,
the Tribunal declared Articles 1 to 90 of the Treaties of the European Union to be partially
unconstitutional.

The conflict between Poland and the EU traces back to 2018 when the Polish Parliament
enacted rules related to the nomination and control of judges by a disciplinary chamber. The
EU Commission referred the case to the Court of Justice of the European Union, and in
March 2021, the Grand Chamber issued a judgment setting aside a ruling of the Polish
Constitutional Tribunal. This decision reaffirmed the principle of the primacy of EU law over
national law.
 In response to the judgment, Polish Prime Minister Mateusz filed a request to the
Constitutional Tribunal seeking an interpretation of Articles 1-2 and 19 of the Treaty of the
European Union. The Constitutional Tribunal, in its verdict on October 7, 2021 (case 3/21
UH), ruled that Article 1 of the Treaty of the European Union, in conjunction with Article 4§3,
as well as Articles 2 and 19, are incompatible with the Polish constitution. Notably, the
Tribunal asserted that it had never recognized the primacy of EU law in previous
jurisprudence dating back to Poland's EU accession.

The Tribunal reaffirmed the supremacy of the national constitution, citing two main grounds.
Firstly, it emphasized the principle of popular sovereignty, claiming that the Court of Justice
of the European Union's expanding authority threatened this principle. Secondly, it criticized
the system of preliminary rulings, arguing that it allows lower

national courts and the Polish Supreme Court to disapply the Constitution by setting aside rulings to
the Constitutional Tribunal. The Tribunal asserted that such a procedure, including the examination
of the legality of the appointment of judges, is outside the competencies of the EU according to
Polish Constitutional Tribunal standards.

Scholars have critically examined the judgment of the Polish Constitution, addressing various aspects
concerning the interpretation of both Polish Constitutional law and the EU Treaty. However, the
focus here is not on those critiques; rather, it is to provide an understanding of the underlying factors
shaping this legal question.

THE APPLE OF DISCORD

As depicted on the next slide, the core of the issue revolves around two fundamental questions:

➢ Primacy of EU Law (External Hierarchy)

The question of the relationship between national law and EU law, with EU law asserting primacy,
forms a significant aspect of the case. This is intricately linked with the internal constitutional
hierarchy of powers in both Hungary and Poland.

➢ Balance of Powers in the National Constitution (Internal Hierarchy)

The issue at stake delves into the internal constitutional hierarchy of powers, especially concerning
the balance between national law and EU law. A critical point in this regard is the provision in EU law
that allows lower national courts to refer matters to the Court of Justice of the European Union for
preliminary rulings. This mechanism provides these lower courts an avenue to extricate themselves
from the constraints of the national hierarchy, where the decisions are subject to review by the
national Supreme Court or, in the case of Poland, the Polish Constitutional Tribunal.

These tensions, or sites of tension, are the focal points around which the crisis of the rule of law has
materialized in Hungary and Poland. The interplay of these questions shapes the legal landscape and
highlights the complex dynamics at the intersection of national and EU legal frameworks.

The concept of the primacy of EU law was established through the landmark decision in Costa c/ Enel
by the Court of Justice of the European Union (CJEU). This decision marked the first recognition of
the primacy of Community law over the laws of its member states.
In the Costa case, a lawyer who was both a user and shareholder of a municipal electricity company
nationalized by the Italian Government in 1962 challenged the validity of the nationalization law.
Costa refused to pay his electricity bill from the newly created national entity, arguing that the
nationalization law violated both the Italian constitution and the EEC Treaty.

Legal proceedings were initiated in the judicial conciliatory of Milan, where Costa requested the
court to refer the case to both the Italian Constitutional Court and the European Court of Justice.
However, the judge only referred the matter to the Italian Constitutional Court, which, in its February
1964 judgment, ruled that while Article 11 of the Italian constitution allowed Parliament to adopt
laws limiting sovereignty for international organizations like the EEC, such laws did not enjoy special
hierarchy. The ordinary rules of statutory interpretation, specifically the posterior principle, applied,
implying that a subsequent law overrules an earlier one. Therefore, the Italian Constitutional Court
argued that the Treaty of Rome, incorporated into Italian law in 1957, could not prevail over the
nationalization law enacted in 1962.

Costa contested another electricity bill before a different justice of the peace in Milan, referring the
case again to the Italian Constitutional Court and, for the first time, to the European Court of Justice.
He sought clarification on whether the nationalization law aligned with the provisions of the EEC
Treaty regarding commercial monopolies, the right of establishment, competition, and state aids.

When the case reached the European Court of Justice, the Italian Government contended that the
preliminary reference was inadmissible. Their argument was rooted in the assertion that the justice
of the peace was obligated to apply the nationalization law, even if it conflicted with the EC Treaty.
Consequently, the Italian Government claimed that there was no need for the European Court of
Justice to rule on the Treaty's interpretation.

However, the European Court of Justice rejected the inadmissibility claim. It acknowledged its
inability to directly assess the consistency between Italian national law and community law but
emphasized its role in assisting the referring court. The Court asserted the impossibility for a Member
State to prioritize a unilateral and subsequent measure over a legal order accepted based on
reciprocity.

Effectively, this marked the articulation of the principle of the primacy of EU law, or as it was then
referred to, Community law. The Court argued that the EEC Treaty had established its distinct legal
system, becoming an integral part of the legal systems of Member States. By creating a community
with its institutions, personality, legal capacity, and international representation, the Treaty's
transfer of powers limited sovereign rights. Member States, in this process, bound themselves and
their nationals to a body of law derived from the community. The Court contended that the internal
integration of community provisions into the laws of each Member State, along with the overall
terms and spirit of the Treaty, rendered it impossible for states to prioritize unilateral and
subsequent measures over the accepted legal system. Such measures were deemed inconsistent
with the established legal framework.

The reasoning behind the principle of the primacy of EU law is closely tied to the mechanism that
allows lower national courts to seek preliminary rulings from the Court of Justice of the European
Union (CJEU). This mechanism disrupts national judicial hierarchies, creating two significant points of
tension: external hierarchy and internal hierarchy.

External Hierarchy: This tension revolves around the relationship between national sovereignty and
the international organization of which the sovereign is a part. The primacy of EU law establishes the
precedence of EU legal norms over national laws, creating a dynamic where national sovereignty is
subject to the rules of the European Union.

Internal Hierarchy: The tension within different constitutional powers in individual member states is
another crucial aspect. The disruption occurs as the external hierarchy spills over and interferes with
the national hierarchy of powers. This interconnected system, witnessed in Poland and Hungary,
contributes to a crisis of the rule of law.

→ This leads to the question: Why is this crisis of rule of law so critical for the European
Union?

The EU is, at its core, a legal entity. It is held together by law, and therefore, challenging the
supremacy of EU law strikes at the very essence of what the EU represents. To unpack or
substantiate this thesis, I will discuss how we have conceived the EU. This will be illustrated on the
next slide as a product of law. The slide showcases two faces of legal scholars closely connected, who
have left an indelible mark on the way we theorize and conceptualize the EU.

Firstly, Mauro Cappelleti, a law professor at the University of Florence and Stanford, is associated
with the idea of integration through law, which was the dominant narrative of EU integration. This
concept succinctly states that the EU and its member states will integrate through law, essentially
presenting the EU as a construct of law.

Secondly, Joseph Weiler, a professor at NYU, wrote a highly influential article in the Year Review of
the transformation of Europe in 1991. Weiler is significant not only for his influence in determining
the direction of EU law scholarship but also because he didn't question the idea that EU integration
happens around law. His contribution was to open up the idea that law itself, though sufficient as a
medium of integration, could be shown using political science methods. He demonstrated that the
system created was patient enough to accommodate member states' reservations about this legal
procedure. The categories he introduced are those of voice and exit. His basic argument was that as
the coordination and integration proceed, it becomes paramount to provide possibilities and give
voice, and the system had proven capable of doing just that.

The aim here is to initiate a discussion about why the question I mentioned earlier is so critical. Why
is the challenge from Poland, and particularly from Poland, so crucial for the EU? To provide part of
that answer, I've just given you a glimpse, as we've always perceived legal integration in terms of law
being the motor, the driving force of EU integration. However, we need to take a step back because,
in a way, it's not a new challenge. The contestation of the EU's primacy is not new, and there is a
historical context to it. I will now delve into some of the most significant moments in this history, and
for that, I'll turn to the next slide.

So, what is new? The German Constitutional Court, specifically its Solange decisions, is not the first to
contest the supremacy of EU law. In a decision from 1974, the German Constitutional Court argued
that the level of fundamental rights protection at the EU level was insufficient at the time. Therefore,
the German Constitutional Court considered itself unable to relinquish its jurisdiction regarding
fundamental rights protection and did not cede jurisdiction to the European Court of Justice. This
jurisprudence was then modified in the Solange decision of 1986, where the German Constitutional
Court held that as long as the case law of the European Court of Justice provided effective
protections of fundamental rights comparable to those offered by the German Constitution, the
interpretation of EU law was binding on all German courts, including the Constitutional Court itself.
This marked a shift from the earlier assessment that the German Constitutional Court would still
need to review acts of EU law for their protection of fundamental rights.
However, this stance was further modified in Solange III in 2016, where the German Constitutional
Court seemed to backtrack on its earlier position. It stated that the future development of the EU
remained under conditional approval of the German Constitution, irrespective of the earlier ruling.
The court would still check two things: first, whether the core of Articles 1 and 20 of the German
Constitution, affirming the inviolability of individual dignity and the democratic and social federal
state nature of Germany, were respected (identity control); and second, an ultravirus control
checking for rogue EU regulations that exceed the transfer of competencies in the EU Treaties.

The reason for delving into the point of the German Constitutional Court is to emphasize that there is
no novelty in the challenges to the interpretation of the supremacy of European law by the European
Court of Justice and now the Court of Justice of the European Union. A historical tug and pull
between national constitutional courts and what is now the Court of Justice of the European Union
has existed since the 1970s.

In this context, there is nothing new. However, what is novel is that the challenges are now coming
from different parts of Europe. National courts, other than the German one, have followed the lead
of the German Constitutional Court, engaging in a polite conversation or ongoing dialogue with the
courts of the European Union. The aim has been to find some sort of accommodation. Part of the
novelty we are witnessing is that the Polish Constitutional Court has contested it in much starker
terms. Instead of stating that it will check for identity control and conformity with the national
constitution, it has declared aspects of the Treaty of the European Union to be incompatible or
inconsistent with the national constitution. This sends a much more assertive message.

It also raises the question of in whose name does the law speak. While we have traditionally
considered Europe as a construct of roles, the question emerges: in whose name does the law speak?
Does it speak in the name of the state, or does it speak in the name of the people? This is an age-old
philosophical question, and we can approach it in two different ways when constructing a society
through law.

The images presented, both of the European flag and the superimposed image of Justicia, revolve
around sovereignty. However, sovereignty can be exercised either by well-mannered, polite
individuals in a room or, as depicted by Lacroix, by a diverse group of people. The question of
supremacy in the Costa/Enel judgment is very much about the former, the well-mannered
conversation between the heads of state. It reflects a legal system that speaks in the name of states.

The idea that a state cannot give preference to a subsequent unilateral measure over an earlier one
based on reciprocity is fundamentally an argument concerning the state, not the people it governs.

What's driving this current rule of law crisis is not primarily related to the external hierarchy but
rather to the way this external hierarchy spills over and disrupts the national hierarchy. If we
acknowledge that law speaks not through states but about people, then we must consider the
diversity within the people. This diversity, as depicted in the Delacroix painting, represents different
national conceptions of what a political society should be like.

The challenges emerging in the European Union, especially from Poland and Hungary, are associated
with distinct national conceptions of what Europe is and what it means to be a nation in Europe.
Looking at a map of Europe, you can observe that these challenges are arising from more peripheral
areas. This leads to the recognition of different European imaginaries and conceptions of the rule of
law depending on the geographical location.
In Western Europe, the concept of a cataclysmic crisis leading to the protection of individual rights as
paramount has shaped political and social life. However, in Central and Eastern Europe, including
Poland and Hungary, the historical experiences have been different, marked by totalitarianism and
struggles for national sovereignty.

The unique historical experiences of Poland and Hungary, undergoing the horrors of totalitarianism
followed by a different form of authoritarian rule, shape their perspectives on the rule of law. This
isn't to excuse or take sides in the political developments in these countries but emphasizes the
historical context and challenges rooted in their distinct historical trajectories.

The conflicts and challenges regarding the primacy of EU law, as established in Costa vs. Enel, are not
static but subject to negotiation. The history of tug and pull between national courts and the
European Court of Justice underscores that the primacy of EU law is an evolving matter. When
negotiation turns into confrontation, and this confrontation arises from specific parts of the
European Union, it is essential to consider the historical experiences and different national
imaginaries of the peoples inhabiting those areas. This perspective suggests a need to be more aware
of the diverse European imaginaries that exist within the construction of the European Union.

What can we do and what can we not do about this rule of law crisis? One thing we can't do, and this
is crucial, is to consider these different national trajectories and experiences – or the kind that
informs these imaginaries – as an excuse for liberalism or corruption. So, we cannot take this as a
blanket justification for leaders like Orban or the Law and Justice Party.

Of course, these issues are open to critique and should be criticized. Unfortunately, what we have
done, I think, is to sweep aside these concerns, pretending that issues related to the rule of law don't
really exist because Poland might be making progress in other areas. Poland may be advancing on
certain fronts, but that shouldn't overshadow or excuse principled matters.

What we need to do is engage in a serious conversation about what Europe is and the purposes that
the law needs to fulfill. If Europe stands for the rule of law, then this issue must be addressed. We
also need to factor this into a thorough discussion about what Europe is. The fact that we are facing
such a crisis at the heart of the EU suggests that we might have defined the European Union and
Europe too narrowly. We need to broaden the definition of what the European Union should be.

In this context, the basis for discussing questions about the rule of law in Europe and what the rule of
law should be at the national state level is essential.
Conference 3 - Mauricio Garcia Villegas - Law as politics, the symbolic uses of legal norms

In this book, titled "The Powers of Law," I delve into a comparative analysis of law, politics, and
society in both France and the United States. The introduction introduces the concept of social,
political, legal studies, aiming to encompass various movements not only in the United States but
also in France and occasionally in other European countries. The second chapter focuses on the
symbolic efficacy of law, which we will discuss tonight.

To initiate this comparative study between the United States and France regarding legality and law,
it's crucial to start with the concept of legal formalism. Legal formalism, prevalent in civil law
countries at the beginning of the 20th century, contrasts with anti-formalist conceptions of law that
were dominant in both the United States and France. The distinction lies in two fundamental tenets
of formalist conceptions: autonomy and neutrality.

Formalist conceptions argue that law is autonomous, existing independently of social reality, and
comprises a logical corpus of ideas free from internal contradictions. Additionally, the interpretation
of law, according to formalists, is neutral from a political standpoint. On the other hand, anti-
formalist views challenge these tenets, asserting that law is intertwined with and dependent on
social realities. Moreover, they contend that the interpretation and application of law are inherently
political processes.

In the early 20th century, the most influential anti-formalist conception in the United States was legal
formalism, advocated by figures such as Roscoe Pound, Carlin, Oliver Holmes, and many others. Legal
formalists articulated three key ideas:

 1. Legal formalists asserted that law and legality are not as crucial as commonly perceived.
They downplayed the significance of law in societal dynamics.
 2. According to legal formalists, the mere existence of a legal provision does not guarantee
its deterministic application in reality. They argued that various factors could influence the
interpretation and application of legal texts.
 3. Connected to the second idea, legal formalists emphasized the importance of politics and
the political perspectives of judges and justices in shaping the content and application of the
law.

This sets the stage for the fundamental contrast between formalism and anti-formalism.
Formalism places emphasis on the predictability of the legal corpus, anticipating that the
information within the legal system remains constant and is consistently applied. In contrast,
anti-formalism directs attention to interpretation and application, highlighting the role of
politics and political understanding in shaping the legal landscape.

After spending numerous years teaching in law schools in France, my observation leads me
to conclude that students are often immersed in an idealized form of law closely aligned with
formalism. The education they receive is intricately linked to formalistic principles. However,
the stark reality becomes apparent when they step into the professional world after
obtaining their diplomas. The complexities and challenges of legal formalism become
evident, revealing the idealistic nature of their academic studies. This disjunction between
the idealized legal education within law schools and the pragmatic experiences outside forms
a central theme.

In discussions with Albertan, Jean Louis Alpern, and Frederick Oran, as presented in Oran's
book on French legal culture, the notion emerges that distinct legal cultures coexist in
 France. One prevails within the confines of law schools, but this does not necessarily mirror
the legal cultures outside these educational institutions, particularly in the judicial field or
within the administration of the state.

As an introduction to the upcoming discussion, I want to emphasize that the formalistic

understanding of law, commonly taught in law schools, fosters a specific perspective on legal
efficacy—one that is notably instrumental. This instrumental efficacy hinges on achieving the
objectives outlined in legal norms. Once these objectives materialize in reality, the norm is
deemed effective. While this form of efficacy is acknowledged in law schools, my focus will
shift to explore a different dimension: symbolic efficacy.

M. Audit prend la parole :

I would like to emphasize the importance of what Mr. Villegas is currently saying. What you've just
learned, if fully grasped, represents knowledge that is not commonly taught. Many individuals in
other classes may never encounter this information, and it could take years before they gain an
understanding of the difference between a formalistic and an anti-formalistic approach to the law.

The way law is taught in France, including in this university, predominantly follows a formalistic
approach. Students are often instructed that there is only one correct way to understand and apply
the law. For instance, when analyzing a “commentaire d’arrêt”, the question is on whether the judge
correctly or incorrectly applied a particular legal theory.

What Mr. Vegas has presented challenges this singular perspective by introducing the idea that there
can be multiple interpretations, and none of them is inherently right or wrong. In France, students
are typically encouraged to believe in a single correct theory, and debates often revolve around
which theory is the right one.

As a doctoral student, I had to go abroad to realize the limitations of this understanding and discover
that many countries have moved away from such a strict formalistic approach. Therefore, it's crucial
to comprehend that the way law is taught in France is not the only way ("LE droit"). There are diverse
perspectives on understanding the law, and Mr. Vegas is shedding light on some of these alternative
approaches. Apologies for the interruption.

M. Villegas reprend la parole.

No problem. Let me contextualize this in more social or political terms. In the United States, when a
jurist, law professor, or lawyer is called upon, they are often tasked with solving or finding a solution
for a social problem. Scholars like Brian Garth have labeled lawyers in the United States as social
engineers due to this role. On the other hand, in France, when a lawyer is called, they are frequently
asked to identify the valid norm applicable to a specific case. Understanding the difference between
these approaches is crucial.

In the first case, the social engineer is expected to find a reasonable answer for a social problem,
irrespective of the specific problem at hand. In the second case, the objective is to pinpoint the valid
norm, determining the applicable norm for the given case. This difference in approach has significant
implications.

However, as mentioned earlier, when individuals graduate from law school and enter the real world,
they come to realize and become aware that the law is not as ideal, logical, perfect, or easy to apply
as they may have thought during their time in law school.
As mentioned earlier, the concept of symbolic efficacy of law aligns closely with the perspective of
anti-realism, emphasizing the interconnectedness of law with both logical and political dimensions of
real-life and social existence.

Plan. I'll structure my presentation into four points: explaining the concept of symbolic efficacy (I),
presenting various interpretations or visions of symbolic efficacy (II), exploring the notion of symbolic
uses of law (III), and finally, addressing a crucial contemporary debate on rights (IV).

I. The concept of symbolic effect

Let's begin with the first point, which is the concept of symbolic efficacy. To illustrate this concept, I'll
draw upon Claude Levi-Strauss's study of a shaman in the Amazonian forest. According to Levi-
Strauss, the shaman didn't become a great wizard because he healed the sick; rather, he healed the
sick because he was a great wizard. This concept resonates with the placebo effect in medicine,
where the power lies not just in the healer's instrumental capacity but also in the representation
created.

This placebo mechanism is mirrored in law, where law often operates as a system of cultural
meaning rather than merely an instrument of control. In this context, the efficacy of law comes from
the language it employs, focusing on what the law suggests rather than its explicit norms. Legal
language, like any language, serves both instrumental and symbolic functions, with the latter being
communicative and linking the legal system to the political system.

The symbolic efficacy of law is rooted in the idea that evoking something is akin to invoking it. While
instrumental efficacy achieves its goals through sanctions and incentives, symbolic efficacy achieves
objectives through communication. Typically, this communication involves conveying values such as
justice, fairness, and legitimacy – values considered crucial for societal cohesion.

Understanding the symbolic efficacy of law is vital for explaining how law functions as a political
resource and mechanism. This concept holds significance not only in civil law countries like France,
Germany, and Spain but also extends to civil law traditions in Latin America.

And I will give you some later some examples to clarify this point, let me go to the second point,
which is different visions of symbolic efficacy.

II. Symbolicefficacy
There are three different conceptions of symbolic efficacy.

A. Liberal vision of symbolic efficacy

Now, let's explore different visions of symbolic efficacy, starting with the liberal perspective. In this
context, "liberal" refers to the American sense of the term, not the European sense, where liberals in
the United States are often associated with the Democratic Party and progressive views.

The liberal perspective aligns with the formalist understanding of law in the modern state, where
legitimacy is derived from the legality of the law. This perspective is encapsulated in the medieval
expression, "Is not the king that makes the law, but is the law that makes the king." Here, the idea is
that in constitutional law, there is a fundamental norm that stands above all other wills, placing all
wills beneath it.
One of the remarkable powers of law, according to this perspective, is its ability to transform the use
of force into a legitimate exercise of authority. The law, in this sense, possesses an inherent symbolic
force crucial for its functioning.

This liberal vision of symbolic efficacy has roots in the works of various authors throughout legal
history, including Aristotle, Plato, Rousseau, John Locke, Max Weber, Herbert Hart, Hans Kelsen,
Habermas, and many others. It emphasizes the need for a symbolic understanding of the majesty of
the law to foster obedience and respect for legal principles.

B. Marxist vision of symbolic efficacy

Now, let's delve into the Marxist vision, which also acknowledges the majestic understanding of law
and assumes that legal norms possess symbolic power. However, in contrast to the liberal
conception, the Marxist vision argues that this power is a form of indoctrination—a means by which
legal concepts veil the existing reality.

According to Marxist thought, the law is seen as an institutional power that creates a false
consciousness regarding social reality. Marxist theorists, including Marx and Engels, contend that the
law has a dual nature. On one hand, it serves a repressive and punitive function, invoking notions of
justice and universal values. On the other hand, it has a symbolic and ideological role.

In this perspective, the repressive aspect of legal norms, or the punitive nature of the law, is
overshadowed by the symbolic and ideological function. The law, according to Marxists, not only
enforces rules but also contributes to the construction of a particular worldview that obscures
underlying social realities.

C. Constructivist (or the cultural) vision of symbolic efficacy

Now, let's explore the third conception of symbolic efficacy: the constructivist perspective. This view
is linked to the cultural turn that occurred in the United States approximately 40 years ago, primarily
within social theory circles. The proponents of this perspective believed that culture, understood as
the representation of society and how people perceive it, was crucial for understanding society.

The previous two visions mentioned were instrumental, functioning as tools to impact an external
social reality. To illustrate this point, consider a hammer or a saw, which are tools used in specific
ways for particular purposes.

In contrast, the constructivist perspective employs a different metaphor—the metaphor of a tree or a

plant. A tree is connected to its environment, dependent on factors such as climate, altitude, soil
type, and temperature. The law, particularly from an anti-formalist conception, is seen as something
connected to reality, influenced by various elements such as legal actors (judges, professors,
individuals), social movements, and more.

According to the constructivist perspective, the legal system is an integral part of the symbolic
construction of reality or the cultural construction of reality. Here, the focus shifts from the capacity
of legal norms to determine human behavior to their ability to produce meaning in social
relationships. In today's complex legal landscape, where judges play a prominent role even in
political life, this constructivist and cultural perspective becomes highly significant.

III. The symbolic uses of law

Scholars such as Leora Israel, Jerome Belkacem, and even Jack Comai in France have shown interest
in this perspective. Many researchers in law and society come from anthropology, emphasizing
culture and representations, contributing to the dominance of this perception.

In this perspective, law is viewed not merely as an instrument but as a social space of confrontation
—a field where various actors contend for legal interpretation and strive to fix the meaning of norms
at a given point. Recognizing that law extends beyond the written text to encompass how people
interpret it and engage in struggles for different interpretations is vital.

When you accept that law's real life lies in these interpretations and contests, you're inclined to
acknowledge that politics is an integral part of the life of law. Here, politics doesn't refer to partisan
politics but is used in a broader sense, signifying different approaches to the reality of law.

Therefore, when we speak of symbolic uses of law, it can also be framed as the political uses of law.
The symbolic, being the subject of contention among legal actors, transforms the symbolic arena into
a political space. Understanding law as a political space highlights the multifaceted nature of legal
interpretation and the power struggles involved in shaping its meaning. This perspective recognizes
the complexity and dynamism inherent in the symbolic and political dimensions of law.

I will distinguish various types of symbolic or political uses. To do this, I will consider two key
dimensions. The first pertains to the type of actor, making a distinction between state actors, such as
judges or officials (e.g., the President), and social actors, encompassing individuals, social
movements, groups, or institutions.

Moving on to the second dimension, it revolves around the political stand. While traditional labels
like left and right are avoided to capture a more nuanced perspective, I'll employ the terms
progressives and conservatives as

commonly understood in legal scholarship. This distinction can be complex because progressives and
conservatives differ from the conventional left-right divide.

Within the realm of rights politics, two essential elements emerge. The first involves the
socioeconomic dimension, while the second focuses on the relationship standard between
individuals and the state. Within this second element, two positions become apparent: paternalism
and the liberal stand. Paternalism allows the state to intervene in private life, deciding what is
deemed best for individuals—a perspective associated with conservatism or paternalism.

This dual framework comprises socioeconomic and individualistic elements, introducing a level of
complexity. For instance, judges may exhibit conservatism in socioeconomic matters while embracing
a liberal stance on individualistic issues. Consider a Catholic judge who holds conservative views on
abortion but adopts progressive positions on socioeconomic matters, influenced by the progressive
social doctrine within the Catholic Church.

With this clarification in mind, I will categorize four sources of symbolic or political uses of law: state
conservative, state progressive, social conservative, and social progressive. These categories arise
from the combination of the two dimensions mentioned earlier.

A. State conservative use of law

Let's delve into the first category, which is the state conservative.
This form of political use of law occurs when public officials utilize norms for political ends. A familiar
example in the United States is the practice of local officials wielding their power to overturn judicial
decisions. Another well-known example is the tactic of filibustering in the U.S. Congress, where a
political party engages in prolonged debate to obstruct government policies. The final legislation
resulting from this process often differs from the initial proposal.

Over the last four decades, the global war on drugs has been marked by the conservative
politicization of law. Joseph Gusfield's influential book in the United States highlights that the norms
designed to prohibit alcohol consumption can be seen not as regulations to be implemented but as
symbolic measures. These norms are promulgated to respond to societal sentiments rather than to
be rigorously enforced. In many countries, including France, the possession of personal amounts of
drugs is formally prohibited. However, there is an informal agreement in certain places, including
Latin America and the United States, that individuals will not be penalized for this violation.

A similar situation occurred during my student years in Belgium when a conflict arose between the
Flemish and Walloon communities over abortion. The Flemish, predominantly Catholic, and the
Walloon, more socialist-leaning, ultimately agreed to formally prohibit the action while
simultaneously refraining from enforcing punishment. The intent was to codify the norm without
practical application.

A comparable scenario unfolds in environmental regulations. Numerous norms addressing the

protection of air, water, and forests are often symbolic in nature. They are promulgated to respond
to political demands emanating from society.

B. State progressive use of law

On the contrary, there is the progressive use of law.

At times, officials, especially judges, leverage the law to advance highly progressive values or ideas.
One notable case in France is that of Judge Magnon from the late 19th century, Paul Magnon,
renowned for his compassion and advocacy for feminism. He gained fame when he acquitted a young
single mother who had stolen bread from a bakery due to hunger.

Judge Magnon was celebrated for consistently delivering justice based on his own conception of
justice. If the written law aligned with his sense of justice, there was no issue. However, if there was a
discrepancy between his

idea of justice and the law, he ruled in favor of his notion of justice. Similar instances can be found
not only in Latin America but also in the United States, where some judges prioritize justice over
strict adherence to written law.

Regarding the case of Cédric Herrou, the olive farmer who assisted people migrating from Italy to
France, helping around 200 individuals cross the border illegally, the situation is not clear. When he
was captured, he argued that he was acting in accordance with the legal principle of fraternity.
Currently, the case is under examination, likely in the Conseil d'État. It remains uncertain whether he
is free or not.

There is a notable tension in this case between the principle of violating the law to uphold the
principle of fraternity. Such a tension is often acknowledged in tragic situations. However, discussions
arise about whether this case is comparable to situations found in tragic circumstances.
In my research, I encountered a contradiction in the information from various journals. Some sources
claim that the Constitutional Council took a very progressive stance, accepting Herrou's actions under
the principle of fraternity. This would imply a progressive decision. However, other information
suggests that the case is still under examination, and there is a likelihood that Herrou will be deemed
guilty, possibly under different norms.

Given this uncertainty, I categorized this case under the state progressive, as if the principle of
fraternity prevails, it could be considered a progressive decision.

C. Social progressive use of law

The third category is the social progressive use of law, which is perhaps the most significant and well-
known type of political use of law. This involves social movements, particularly prominent during the
civil rights movement in the United States. Figures like Martin Luther King and others recognized that
the strategic use of law could be an effective means to achieve their objectives. Unlike traditional
social movements that typically take to the streets, the civil rights movement leveraged the legal
system as a tool for social emancipation.

I will delve further into this later, but it's essential to note that social movements can sometimes turn
the rhetoric of those in power against them. As the renowned British sociologist Hippie Thompsons
suggested, subordinates can learn to use the same rhetoric as a political weapon. In Latin America, a
common strategy of political power is to promulgate highly progressive constitutions, expecting that
these idealistic documents will never be fully implemented due to resource constraints. This serves
as a strategy to offer hope and legitimize their authority in the present while waiting for the future.

However, in current times, especially in Latin America and the United States, social movements have
adeptly learned to use this rhetoric to advocate for their causes in courts and before judges.

M. Audit prend la parole

In France, there is a notable example with "le droit au logement" (the right to housing), and some
individuals began asserting this right. In response, a concept called "le droit au logement opposable"
was created. Initially, the right to housing had been voted on but was not practically enforceable.
People began demanding it, prompting the government to attempt implementation by designating it
as opposable.

M. Villegas reprend la parole

D. Social conservative use of law

The conservative use of law mirrors the social progressive approach but is employed by individuals or
groups from the right.

Examples abound in the United States and even here in France, where conservative social
movements advocate for their causes.

For instance, there are groups in the United States, particularly from rural areas, fighting for the right
to bear arms, closely associated with the Second Amendment. This movement finds full support from
organizations like the National Rifle Association.

IV. Debate on rights

Moving on to my final point, let's delve into the debate on rights, a topic closely tied to what I've just
explained. In the 1960s and 1970s in the United States, the social rights movement, championed by
figures like Martin Luther King, sought to secure various rights.

However, during the subsequent decades of the 1980s and 1990s, scholars extensively examined
whether this rights revolution, as Charles Hemp termed it, truly amounted to a revolution and what
its effects were. The key question revolved around whether these struggles were merely symbolic
and futile or if they played a pivotal role in advancing social movements.

This debate led to a diverse body of literature, with some scholars adopting a pessimistic outlook and
others expressing optimism about the outcomes of the rights revolution.

One intriguing and provocative voice in the pessimistic camp is Gerald Rosenberg, who authored a
well-known and influential book titled "The Hollow Hope." In this work, Rosenberg scrutinizes
numerous judicial decisions from the civil rights movement of the 1960s and 1970s. After analyzing
their consequences, he provocatively concludes that these legal victories were largely symbolic,
having minimal impact and failing to bring about any revolutionary or substantial social change.

The significance of the debate on rights extends into the social legal field in the United States. Stuart
Sheingold, in his concise but highly recommended book titled "The Politics of Rights," explores the
distinction between rights as politics and rights as myths. He emphasizes that rights can be viewed
not only as legal constructs but also as elements shaping political struggles. Legal formalism tends to
treat rights as fixed entities, but Sheingold suggests a more dynamic perspective, recognizing rights
as political tools in the ongoing struggle to define the law from a political standpoint.

Within the realm of law and society, several scholars, detailed in my book's chapters, strive to
navigate a middle ground between optimism and pessimism. Notably, Michael McCann and Robin
Striker offer valuable insights. McCann highlights the complexity of assessing the utility of rights for
social change. He emphasizes the importance of examining the conditions under which rights are
effective, advocating for an understanding of the factors conducive to social change and even
revolutions.

McCann's approach serves as a bridge between the literature in political science, which outlines
conditions for successful social movements, and the literature in social legal studies, which may
sometimes overlook these political science insights. The key message is that scholars should analyze
real-world conditions that contribute to the success of social movements instead of adopting a
predetermined stance of optimism or pessimism.

Conclusion.
In conclusion, I would like to emphasize four key points that encapsulate the essence of our
discussion.

Firstly, it is crucial to recognize that the life of law inherently possesses a political dimension. The
concept of symbolic efficacy serves as a valuable tool in comprehending the functioning of law and
how this political dimension is intricately connected to the political uses of law.

Secondly, the destiny of law is not solely determined by the actions of officials such as judges or
legislators. Equally significant are the actions of individuals and social movements, highlighting the
collaborative and interactive nature of the legal system.
Thirdly, when viewed from a socio-political perspective, rights can assume dual roles. On one hand,
they can serve as instruments for the political legitimation of law and the state. On the other hand,
they can function as tools for the political emancipation of groups and individuals. It is common for
the state and political entities to strategically separate these two phases, aiming to derive legitimacy
first and delay actual enforcement—a prevalent political strategy.

Lastly, the contemporary complexity of the legal system plays a pivotal role in shaping political uses
of law. Factors such as the increased influence of judges in political affairs, globalization impacting
legal norms beyond national boundaries, and other modern phenomena contribute to this
complexity. This complexity is not confined to France alone but is a global phenomenon that
influences the dynamics of the legal field.
Conference 4 - Kevin Cope - Sourced Measure of Judicial Ideology

In 2019, France passed a law that criminalized the analytical study of judges. This was aimed at sort
of data firms, and it's not immediately. It's not clear to me what the parameters or the specific of the
law is. But it suggests that people who attempt to do kind of what I'm doing might at the very least
incur the wrath of the judiciary and might find themselves in legal trouble, so I'm not about to do
that anytime soon.

My study is currently just limited to judges in the US, but we'll see where it goes.

Background about studying judges

For nearly a century, a dedicated discipline has sought to unravel the complexities behind why judges
make the decisions they do. This endeavor involves understanding the intricacies of judicial decision-
making, deciphering the factors that contribute to disagreements between two different judges, and
discerning the guiding principles that lead a judge to a specific legal outcome. The ultimate goal is to
predict how judges will decide cases—a pursuit of paramount importance, especially for legal
professionals and policymakers.

For lawyers, understanding the nuances of judicial decision-making is crucial when strategizing legal
arguments. However, for policymakers, individuals tasked with designing the systems for appointing
judges, this understanding becomes even more pivotal. The intricacies of how judges arrive at their
decisions impact various aspects of the legal landscape.

Judicial decision-making goes beyond simply determining the outcome for plaintiffs, defendants,
petitioners, respondents, or government entities. It extends to the realm of criminal sentencing—
raising questions about when judges opt for harsher or more lenient sentences. Furthermore, it
delves into the nuanced considerations judges make when deciding on evidentiary issues and which
parties they align with in such matters.

Definition. Judicial ideology is a given judge, or a jurist approach his or her view of the proper role of
courts, of law and courts in society.

That's deliberately vague, but it encompasses all sorts of attitudes about the role of courts.

 - Should judges be more deferential?

 - Should they defer to legislatures, or should they take the law more into their own hands
what we may call an

activist judge?

In a federal system where there's a division of power constitutionalized between provincial

governments and the national government, a judge might have a view about the distribution
of power between the national government and the sub-national, provincial, or state
governments.

A judge might also disagree about the extent to which rights should be more robust or more
limited. Should we be recognizing new rights? Should we be recognizing expansive rights
such as those in the United States, like the Bill of Rights, and others, and in the European
Declaration of Human Rights of Fundamental Freedoms in Europe, and many other countries,
almost all of which have some sort of Bill of Rights or equivalent. These are just a few
 dimensions on which judges may disagree, and they bring these predispositions, that
ideology, if you will, to every case they decide.

Studies show that this ideology is a major factor in predicting how individual judges decide
cases. One reason for conducting such studies is to gain more traction in understanding what
predicts these things, how ideology changes. After I'm done with this presentation, I'll delve
into a few of the questions that these data, I hope, will give us more traction on. Perhaps
we'll have a clearer understanding once I've walked through the entire process

In the paper (which will be available on SSRN, Social Science Research Network, a free
depository for law and social science papers), I start by identifying a typology of judicial
ideology measures.

I have three different ways which I'll just bring up here. I call them: ❑ Vote counting

❑ Proxy
❑ 3rd party.

What I mean by a typology of judicial ideology measures is, how do we, what method do we use to
try to identify a judge's ideology? Needless to say, a judge doesn't just come out and say, "Here is my
ideology," and even if they did, it wouldn't be fairly reliable or trustworthy because judges may have
reasons to distort their ideology, especially when they're trying to get a job or get appointed in the
first place. They may want to make themselves appear to be more moderate or to conform to
whoever the appointing entity is, whether it's the legislature or a judicial commission or a Prime
Minister or some other executive, and so forth.

So we can't trust that. Therefore, we need to find a way to get at what a judge's ideology actually is.
I'm going to walk through these three types: vote counting, proxy, and third party.

I. Vote counting
Vote counting, as the term suggests, involves scrutinizing the outcomes of cases decided by a judge.
Typically, this encompasses not just a few dozen cases, but often hundreds or even thousands,
especially for judges with extensive experience on the bench.

In the process of vote counting, each decision is carefully examined and coded according to specific
criteria. This coding can vary along different dimensions depending on the context. For instance, in
my past work in immigration and asylum law, we focused on petitions for asylum under the 1951
Refugee Convention. Judges would decide whether to grant or deny asylum, and these decisions
were recorded, indicating whether the petition was approved or denied.

A. Guided approach

Another approach involves categorizing decisions based on whether the judge ruled in favor of or
against the government, among other possible criteria. The Supreme Court, for instance, utilizes a
method known as the Heralds Faith Supreme Court database, which classifies each decision as liberal
or conservative. This database spans the entirety of Supreme Court history, examining about 100
cases per year dating back to the 1700s.
Analyzing how judges vote in every case, especially at the level of the United States Supreme Court,
is a meticulous process. The votes of Supreme Court judges are almost always counted, and they
publicly associate themselves with a particular outcome, be it in support or opposition. This
transparency allows for a clear understanding of a judge's stance on liberal or conservative decisions.

In a study I conducted with a co-author on Justice Neil Gorsuch, a relatively new member of the
Supreme Court, we delved into his decisions during his tenure as a Circuit Court judge. Neil Gorsuch
served on the 10th Circuit, covering a multitude of cases. By examining every decision, he
participated in, we determined whether he voted for liberal or conservative outcomes. Employing a
mathematical scaling technique called item response theory, we positioned these votes on a spatial
dimension, revealing surprising findings. Despite initial expectations of strong conservatism, Gorsuch
appeared more moderate, closely aligning with the median judge on the court.

This comprehensive method of counting and categorizing votes provides valuable insights into
judges' ideological leanings, often challenging preconceived notions and allowing for nuanced
interpretations of their judicial positions.

B. Agnostic approach

All right, here's another instance of vote counting. Up to now, we've been employing what we call a
guided approach, where we examine each case and determine whether it leans towards a liberal or
conservative

interpretation. Another method is the agnostic approach, exemplified by the well-known Martin and
Quinn scores. Instead of assigning a specific result, these scores focus on whether the judge voted
with the minority or the majority.

Using statistical methods, researchers can then plot judges relative to each other. What's particularly
valuable about this method is its ability to track changes over time. With every new case, the model
adjusts, providing a dynamic perspective. Andrew Martin, currently the President of Washington
University in Saint Louis, and Kevin Quinn, a member of my PhD committee, are prominent figures in
this field. They regularly update these scores, allowing for an analysis of how judges' positions evolve
over time.

II. Proxy
Here's an entirely different approach that doesn't revolve around scrutinizing and tallying votes; it's
what I term a

proxy method. This approach is a bit more indirect.

In essence, a proxy measure, instead of directly analyzing the cases, involves a researcher examining
someone connected to the judge. The researcher then endeavors to discern the political leanings of
this intermediary figure and, by extension, infers that the judge shares similar leanings.

A. The Judicial Common Faith

The most frequently referenced scores currently, with over 1000 citations for circuit judges, are
referred to as the

judicial common faith.

In this method, let me provide a bit of context about the United States. Senators, members of the
upper chamber, play a crucial role. When a judicial vacancy arises in a state, the senator essentially
has the authority to choose the new judge. Although technically appointed by the President, the
senator's preference is typically followed, especially if they belong to the same party as the
president.

Now, the judicial common space method examines the Congressional voting record of that senator
and extrapolates that the judge chosen will align closely with that senator's political stance. While
this might initially seem somewhat speculative, it surprisingly exhibits a significant level of predictive
accuracy and performs quite well in practice.

B. Clerk based ideology

Furthermore, what might appear even more peculiar is the clerkship or clerk-based ideology, as
proposed by Bonica et al., among United States circuit judges. In this system, recent law graduates,
commonly known as log grads, play a pivotal role. They handle all the research and writing of
opinions, essentially functioning as assistant judges, while the judges themselves tailor the final
opinion. Although the judges have the ultimate decision-making authority, clerks bear significant
responsibility in shaping case outcomes.

Under this framework, attention is directed towards the clerks hired by judges. For instance, if I clerk
for a judge named Ryan Smith in the 9th Circuit in Los Angeles, researchers will assess not whom I
voted for (as that information is private) but rather whom I have financially supported. This includes
contributions to presidential candidates, senators, and local races. A cumulative score is generated
based on my contributions, and it is then assumed that Judge Smith, my employing judge, shares a
similar ideological stance.

It's a somewhat indirect and disconnected approach, but it falls under the umbrella of the proxy
method.

III. Third party

The Seagull cover scores constitute a well-established third-party metric. Unlike the proxy method,
this approach

involves examining the observations of individuals familiar with the judges and then quantifying
those observations.

To illustrate, let's consider the recent nomination and approval of Judge Ketanji Brown Jackson by
President Biden. Her nomination sparked controversy, with numerous editorials in outlets like the LA
Times and The Wall Street Journal expressing opposing views—some arguing against confirmation,
citing her as too liberal and out of touch, while others advocated for confirmation, highlighting her
excellent judicial record and distinguished career.

The Seagull cover score takes these editorials and translates them into a prediction of the judge's
perceived ideology based on the content of the articles. For example, if an editorial contends, "Don't
confirm Judge Jackson because she's super liberal," she would receive a liberal score. By averaging all
these editorials together, the Seagull cover score allows for the estimation of the relative ideology of
different judges.
IV. How good is an ideology measure for a judge?
Each of these methods possesses intriguing and attractive qualities for discerning a judge's ideology,
but they also

come with significant shortcomings.

When evaluating the effectiveness of an ideology measure for a judge, we can focus on 3 critical
aspects:

Construct Validity:

o Construct validity essentially refers to the measure's accuracy in capturing what we intend to
measure.

o In this context, does the method effectively gauge the elusive concept of ideology, which is not
directly observable? Does it do so with precision or inadequacy?

Sensitivity:

o Sensitivity gauges whether the method allows for distinguishing small variations between two
judges.

o For instance, if two judges were appointed by the same president around the same time, can the
method differentiate between them? The Quinn scores, as seen in Martin and Quinn, which
scrutinize judges' votes, exhibit sensitivity.

o On the other hand, methods like justice for common space, centered around the appointing
authority, lack sensitivity.

Generalizability Construct Validity:

o Generalizability assesses whether the findings extend beyond the specific judges under study to
judges as a whole.

o Do our conclusions have broader applicability, or are they confined to the specific group of judges
being examined?

Each method excels in certain aspects while falling short in others. With this project, my goal is to
build upon these existing methods, combining their strengths and addressing their weaknesses. The
aim is to create a comprehensive method that performs well across these dimensions. Ultimately,
your judgment will determine whether the approach succeeds in achieving this ambitious goal.

A. Almanac of Federal Judiciary

There's a publication in the United States known as the Almanac of the Federal Judiciary, published
by the legal publisher Aspen Publishing, Walters, Kluwer. This ongoing publication comprehensively
covers every federal judge in

the country, numbering close to around 1000, depending on the specific count. These judges, termed
Article 3 judges under the U.S. Constitution, serve for life, enjoying life tenure from the moment of
their appointment, with no possibility of demotion or salary reduction.

Understanding these judges is crucial, and the Almanac of the Federal Judiciary goes beyond
providing biographical information. It conducts surveys among attorneys who have appeared before
these judges, seeking insights into their temperament, abilities, and notably, their ideological
leanings – whether considered liberal or conservative. The publication then presents attorneys'
responses in their own words, offering free-form, prose-style answers.

To illustrate:

 - Judge Brett Kavanaugh, a recent nominee of President Trump and a somewhat

controversial figure due to allegations of past sexual assaults and perceived extreme
conservatism. A study, conducted in collaboration with Josh Fishman, confirmed Kavanaugh's
strong conservatism, which was acknowledged during hearings. Evaluations, such as the one
for Kavanaugh, provide nuanced insights into judges' characteristics and attitudes.
 - Stephen Breyer, a recently retired Supreme Court Justice, marked with handwritten notes
and cross-outs. Given the vast volume of such evaluations, which run into hundreds of
thousands of pages, automation becomes essential for analysis.

The Almanac includes diverse assessments. For instance, in Kavanaugh's case, attorneys'
responses varied, with some describing him as "ultra-conservative," others noting an attempt
to be fair, and some labeling him a "pro- police right-wing activist." Despite differences, a
consistent theme of conservatism emerges in these evaluations, showcasing the richness and
complexity of attorneys' perspectives on judges' ideologies.

B. Methodology

In handling this vast volume of textual data, I employ a method known as text analysis. As
mentioned earlier, with hundreds of thousands of pages at my disposal, I input them into a
computer, allowing the system to process all the phrases, not just individual words but every
distinct phrase. In the realm of data science, we refer to these as "ngrams," where 'N' stands
for the number of words in a phrase. This can range from unigrams (single words) to bigrams
(two-word phrases) and extend up to nine-word phrases. From this extensive pool, a team of
coders identifies and evaluates the most frequently used phrases, finalizing a list of
approximately 8,000.

Each identified phrase is then assigned a numerical score on a scale from -3 to +3. In the
context of this scoring system, -3 signifies an extremely liberal ideology, while +3 represents
an extremely conservative ideology.

The definitions of conservatism, judicial liberalism, and centrism in this context might be
subject to some controversy.

 - Conservatism, in this framework, is characterized by the primary functions of law and

judges aiming to fulfill the intent of democratic bodies and constitution drafters, settling
 private disputes, and enabling individuals to pursue their goals without government
interference.
 - On the other hand, liberalism entails prioritizing the protection of fundamental rights,
promoting equity and legal equality, and shielding people from abuse by powerful actors.

Here are examples of two-word phrases (bigrams) that illustrate the scoring continuum:

 Extremely liberal (-3): "Very liberal," "Very compassionate"

 Moderately liberal (-2): "Pro-plaintiff" (favoring those bringing a lawsuit against powerful
entities)
 Centrist (0): "Even-handed," "Fair," "No leanings"
 Moderately conservative (+2): "Pro-government bias," "Pro-police"
 Extremely conservative (+3): "Very conservative," "Pro-government"

This process involves scanning the entire corpus, which consists of around 86,000,000 words. With
assistance from data scientists, we identified and analyzed these words. The challenge lies not only in
deciphering handwriting complexities but also in handling various formats.

The key innovation lies in ensuring that only the most meaningful information is coded. In essence,
we aim to mimic human coders by designing a textual algorithm that can systematically capture what
a human coder would perceive. For instance, when faced with conflicting statements like "very
conservative but fair," the algorithm needs to interpret this nuanced evaluation.

The method involves finding every engram in an evaluation (such as the one for Kavanaugh) and
calculating the average score for each engram. This process entails assigning scores to phrases like
"has an agenda, but I haven't seen it" (possibly a moderate score like 0) and "pro-police right-wing
activist" (a score of three). By averaging all the engram scores, we arrive at the judge's ideology
score.

Previewing histograms for a few judges reveals their distribution of scores. The x-axis represents the
number of evaluations, while the y-axis indicates the ideology score, ranging from very liberal on the
left to very conservative on the right. Different judges exhibit diverse score distributions, with some
judges having a consensus (e.g., Jerome Ferris as centrist) and others generating disagreement (e.g.,
Richard Posner, considered a libertarian). The dashed line represents the mean, serving as the
ideology score for each judge.

To assess the validity of this approach, comparisons were made with other scores, such as party
affiliation of the appointing president (PAP), judicial comments space (JC's), and clerkship-based
ideology. Correlations were observed, indicating that the method measures something distinct from
other scoring systems.

Can the scores predict the outcomes of judicial decisions, and how do they compare to other
methods such as the party of the appointing President, judicial common space, and clerkship-based
ideology? A logistic regression model is utilized to evaluate the predictive power of these methods,
specifically assessing their ability to predict the chance of a liberal outcome.

In the results, a higher score is considered better, and significance is denoted by stars. Notably, the
judges' scores outperform other methods in predicting case outcomes. For instance, a change from -
1 to +1 in the judges' score correlates with a 40% increase or decrease in the likelihood of a liberal
outcome by the panel.
It's emphasized that while these predictions cover all cases, some lack political or ideological
salience. Focusing on cases with dissents, which tend to be more contentious and challenging, the
judges' scores demonstrate even greater predictive accuracy. This suggests that the method excels in
anticipating outcomes in harder, more ideologically charged cases.

The provided data is a partial snapshot from the Circuit Judge Ideology Database, featuring judges'
names and their associated ideology scores. The bars represent confidence intervals, indicating the
level of uncertainty in the estimates. Larger confidence intervals signify greater uncertainty, while
smaller ones indicate more confidence in the estimate.

V. Polarization?

To finish up quickly in the next few minutes, I'd like to highlight a few aspects in this paper that
demonstrate what can be done with this data, which perhaps was not achievable before.

Firstly, in the United States, especially over the last couple of weeks, I have been examining
parliamentary elections, notably in Argentina and the Netherlands, where polarizing figures gained
attention and were elected. In the United States, the perception over the past few decades has been
one of increasing polarization and division, contrasting with a prior moderate consensus.

A critical question arises: are judges also drifting further apart? This divergence among judges could
signify challenges such as a lack of consensus and agreement on fundamental facts within the
country. For context, I referred to the events of January 6th, 2021, the Trump riot at the Capitol
aimed at overturning the elections. The

aftermath of this event highlights the deep divides in American society, where agreement on even
basic events becomes challenging.

The data I have can provide insights into whether judges are also undergoing a similar split. By
examining the distribution represented in a histogram, we can assess the level of polarization. If
judges are closely clustered, there should be a single tall bar in the middle. On the contrary, true
polarization would be evident if there are distinct bars on the left and right. I've color-coded these
bars – blue for judges appointed by Democrats and red for those appointed by Republicans. The
analysis spans from 1995 to the late 2000s, revealing an intriguing trend. Instead of increasing
polarization, judges seem to be coming together, challenging the conventional narrative of a divided
judiciary.

This finding is noteworthy, especially considering the prevailing belief in the U.S. that its political
system is experiencing heightened polarization. I briefly mentioned a couple of theories, but
exploring these further would warrant a separate paper. One theory proposed relates to the U.S.
Senate's confirmation process for judges, specifically the filibuster. The filibuster, a tactic allowing the
minority to obstruct the majority's will, played a role in encouraging the nomination of more
moderate candidates. The data suggests that presidents, facing the potential filibuster, opted for
centrist choices, contributing to the observed trend of judges coming together rather than drifting
apart.

Finally, let's examine changes over time. In the plotted graph, starting from the year 1960 with
Dwight Eisenhower and spanning through JFK, Lyndon B Johnson, Clinton, George W Bush, and
Barack Obama, each circle represents an individual Circuit Judge Appellate judge.
The vertical axis denotes their ideology score, while the line illustrates the moving average of the
judiciary over time. For instance, during Jimmy Carter's presidency, a wave of liberal judge
appointments pushed the score downward. Conversely, Ronald Reagan, a conservative icon, shifted
the average back to the right, indicating a more conservative judiciary. This pattern continues
through subsequent presidencies.

This analysis helps us evaluate how successful presidents were in steering the judiciary according to
their preferences. Additionally, we can explore the impact of Senate composition on these dynamics,
considering the Senate's role in approving judge appointments.

These insights open avenues for various questions, such as the influence of ideology on reversal rates
and the effectiveness of judges in facilitating settlements. Exploring these aspects contributes to the
broader fields of judicial behavior, American institutions, and the study of litigation. These questions
remain pivotal in understanding the multifaceted dynamics within the legal system.

`
Conference 5 - Kevin Cope - U.S. Free Expression Exceptionalism

I'm happy to talk today about American free speech exceptionalism. Now, just to clarify what I mean
by exceptionalism, when I say exceptional, that doesn't necessarily mean that it's the best or even a
better way of doing something. Things can get lost in translation. I don't know how this would be
translated into French.

Definition. We mean to say that the American system of free speech, constitutional free speech
protection is unique.

I think it's safe to say, not just in the Western world, but in the entire world, and it's unique in a
variety of ways, not just in the outcomes or the type of speech that is protected but also in the
method that judges and courts use to protect it.

But also going back to the origins, it is arguably perhaps the most concise constitutional free speech
provision of any I'm aware of and probably as well the oldest, with the one exception of, does
anyone know?

So going back to the French Revolution, my understanding is that the kind of language from the
French Revolution has made its way into at least the preamble of the French Constitution, although it
wasn't given real teeth until the 1970s in terms of giving citizens a way to enforce it. Nonetheless, the
language goes back that far.

Whereas most free speech provisions in the constitutions of the world, as well as the European
Convention on Human Rights and Fundamental Freedoms and things like the International Covenant
on Social and Political Rights, an international treaty, are much more of a recent vintage. Going back
only a few decades.

The US constitutional provision is from the 1790s, and of course, it's known as the First Amendment
in the US Bill of Rights. And it simply says, in relevant part, Congress shall make no law abridging the
freedom of speech. Period. No exceptions. No caveats, anything like that. So, there are a variety of
ways in which American free speech is exceptional.

I. Some examples of American exceptionalism

I want to start by providing a few anecdotes of ways that American free speech doctrine leads to
different results

than you might find in other countries. A. The Iran Case

I'll start with the case of Princess Soraya versus the Velt. This is a German case from the 1970s.
Princess Soraya was the wife of the Shah of Iran but eventually divorced him and was living in
Germany.

This publisher published a fake interview where she proceeded to give a bunch of details about her
personal and professional life. This was all fabricated, of course, but it was meant as a satire, not to
be taken seriously, although she did. And so, she sued in the German courts to have it restrained and
for money damages and succeeded. The publisher was ordered to pay a very large sum, especially in
1973 dollars. I forgot the exact amount.

B. Jerry Falwell Case

Contrast this with a case from the United States that's a little bit more recent. This is a case that
actually reached the US Supreme Court. Jerry Falwell, who was a very famous evangelical Christian
preacher. So one of these charismatic preachers that had a mega church with tens of thousands of
people, and people speaking in tongues and all. This you probably haven't seen in person, but you
may have seen in the media, movies or whatnot.

Anyway, he was a well-known Christian figure known for his devoutness and propriety and so forth.
Especially, he was a vocal opponent of not only gay rights but also pornography and so forth. So in
direct contravention to the values of Hustler magazine.

Hustler magazine published this ad for the liquor Campari, and it is also an interview with Jerry
Falwell. Like the Princess Soraya case, it is fabricated. It describes Jerry Falwell in detail having an
incestuous rendezvous with his mother. And then he decided to have sex with her because she had
shown all the other guys in town such a good time.

Alright, so he didn't like this either. And he sued Hustler magazine for a large amount of money, and
the Supreme Court of the United States took this case and decided, on constitutional grounds,
unanimously, that the speech was completely protected as legitimate First Amendment expression.
So, that's an anecdote one that gives you a stark contrast of exceptionalism.

C. Crime Times

There is a magazine called Crime Times. You can go to kind of like the corner store or a drug store or
one of these bodegas, and you can pick up one of these magazines, which includes the names,
photos, and charges of anyone who was arrested in town the previous day or the previous week. As
soon as someone's arrested, they put their picture up in the media for everyone to see, for everyone
to mock them, and so forth.

There, relatedly, and those are just people who are arrested, right? Not convicted of any crime. Some
of them seem irrationally happy about being arrested there, others less so. And it only costs $1.00, or
maybe $1.25 with inflation.

D. Sex offender registry

Another example is the sex offender registry. So in every city, every place in the country, you can go
to the local sex offender registry, click on a map, and see all the people who have been convicted of
sex crimes and where they're living, along with a detailed description, not only their picture but also
a detailed description of what they were convicted of.

In order to do that, you need to agree to the terms of service, which basically says you're not going to
use this to stalk or harass them. And yet, that hasn't stopped many people from, as you might expect,
throwing bricks through the person's window if it's a pick of child molesters and whatnot, or stalking
them, or even assaulting them. But this is a somewhat controversial policy.

But it's thought that the rights of potential victims to know what sort of sex offenders are living on
their street would trump any privacy rights of these people. And in fact, this can last for their entire
life. And no matter what the offense, even if it's something relatively minor, so long as it is
considered a sex offense.
II. ProhibitionbyU.SGovernmentfromexpressing
To which degree the U.S Government is prohibiting people from expressing one viewpoint over
another

A. Burning the U.S Flag (YES)

The landmark case here is Texas vs. John Johnson. At one point, not under U.S. Federal law but under
Texas law, the U.S. state of Texas had a law that prohibited the burning of the American flag in
protest. You sometimes see people do this as a protest the foreign policy of the United States. You
see it quite a bit overseas, but you'll also see it sometimes in the United States. And Texas made this
a crime to do this.

In 1989, the Supreme Court heard the case challenging someone challenging their conviction and
held that prohibiting flag burning is unconstitutional. The court held that it's based on the bedrock
principle that the government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or agreeable. So, most people opposed flag burning would never do it,
and most Americans want to criminalize flag burning. They think it can be an insult, especially to war
veterans and so forth. But nonetheless, the court held that despite all that, the government may not
take sides in this debate over whether the flag is a positive or a negative symbol.

Now, of course, this decision may resonate with folks on the left who are more likely to criticize
national foreign policy, more likely to disagree with people on the right who are more likely to
support the country, or at least veterans and military action and so forth.

B. Burning a cross (Ku Klux Klan) (NO)

You might wonder if this is just limited to that set of principles, but just a few years later, the court
heard the case of

R.A.V. versus City of Saint Paul.

This is a case where the city of Saint Paul had criminalized burning crosses in general.

Now, you may or may not know, but a burning cross is the symbol of the Ku Klux Klan, which is a
racist terrorist organization that arose in the late 1800s in response to the freeing of slaves.

It was an attempt to keep freed African Americans suppressed, to prevent them from moving into
their communities, and so on and so forth. It accomplished this through a variety of means, including
lynching, killings of black men, women, and children, as well as terrorist techniques and threats. It
literally killed thousands and thousands of people as a means of terrorism. It had its heyday
throughout the 1890s and the early 20th century but slowly died out, fortunately, although it still has
a tiny presence today.

So, it turns out a couple of young men decided to light a flaming cross. This is a symbol that's very
iconic, just as iconic, I would say, as the Nazi swastika is in most of the rest of the world. They lit a
burning cross on the front yard of an African American family. They were tried and convicted under
this law, and the Supreme Court held unanimously that it was protected free speech.

The reason is that the government may not single out racist ideas for regulation unless it also
criminalizes support for racial equality. So, based on hostility or favoritism toward the underlying
message expressed, the government cannot restrict speech toward or against one viewpoint unless
it's also doing it for the other. It could not restrict racist messages unless it's also restricting messages
in support of racial equality. The government simply has no power to restrict the expression of
people and the views that they express.

All right. So those are a few of the examples of American exceptionalism. But I want to talk about
how we got there and what possibly could justify these sorts of decisions. What possibly could justify
protecting the destruction of a national symbol that is supposed to represent what's good about the
country, what could justify expressions of racial violence?

III. Leading theories of why the U.S protect hate speech

I want to talk briefly about the leading theories of why we protect such expression. These theories
are not

exclusively American or U.S. theories, but general theories.

They were developed mainly by common law scholars from Britain, Scotland, and the U.S., but they
really apply to some extent to any regime that is attempting to limit speech in some way.

A. Search for Truth (Marketplace of Ideas)

So the first theory is what we call the Search for truth, another way of thinking about it is the
marketplace of ideas.

JS Mill, a well-known liberal philosopher, coined this term and espoused the idea that we need to
protect speech because information is a public good. In other words, it produces benefits that affect
everyone in society, and these benefits can't be limited to the producer. Therefore, we don't want to
regulate them because we want to encourage people to produce more of them. If we do regulate
them, regardless, they'll be underproduced, so we need to reduce or eliminate the cost of
production.

A related thought here is that ultimately correct information is more valuable than false information.
Whether it's a good political idea about how to run society or an invention like a new medicine or
some other new technology, correct information is going to be more valuable. So, we want to
incentivize investing in it. If we allow an unrestricted marketplace, the best ideas will rise to the top,
prevailing in society. Critics may ask why they include beliefs that are obviously false or considered
dangerous.

For instance, Flat Earth or Holocaust denial, which many countries prohibit or criminalize. Supporters
of the marketplace of ideas argue that throughout history, many wrong or questionable things were
once considered obviously true, and contrary views were suppressed by the government. Over time,
these discredited ideas have changed, and the marketplace of ideas allows for the continual
reevaluation of beliefs.

As Oliver Wendell Holmes, a justice of the U.S. Supreme Court, said, "When men have realized that
time has upset many fighting faiths, they may have come to believe even more than they believe, the
very foundations of their own conduct, that the ultimate good desired is better reached by free trade
in ideas."

So examples:

 - The earth is the center of the universe once unconditionally, except to be true, except by
Galileo and others.
 - The Roman Catholic Pope is the legitimate successor to Christ again in some societies this
would be a matter of faith not to be questioned. In others the Pope is not this legitimate
successor to Christ, could be met with

equally harsh punishments for those who dissented.

 - Some races are genetically subhuman, was once unconditionally understood to be true,
now known to be

not true, but those who opposed it at the time were, if not criminally punished, were at least
ridiculed and

had social costs imposed on them.

 - Likewise, women are not capable of participating in civil and professional life. In the US, the
women have

only had the vote for around 100 years before then and one of the main arguments was, of
course, women

have a different place in society and it's not in professional life.

 - There are even more recent examples we can think of such as whether the Armenian
genocide was an actual

genocide in some countries, this is arguably illegal to claim that it wasn't.

 - COVID was developed in a laboratory, not a wet market. I'm not aware of this being
criminalized by just a

couple of years ago, Twitter was censoring anyone who claimed that it was developed in a
laboratory. Of course, we still don't know for sure, but the official position of the US
government, the Center for Disease Control, is that it probably was developed in a laboratory
now. So just a couple of years ago that would have been prohibited speech. Now it's thought
to be probably true, though we don't know for sure.

 - Are there 2 human sexes or are they on the spectrum?

 - Was the October 7th Hamas attack justified? Is Israel's response justified? We have people
on both sides of

the debate who claim that those on the other side are guilty of hate speech and their speech
should be

punished.

 - What about Flat Earth theories or Holocaust denies? Do they have any value like things
that we've, you

know, now essentially decided are false?

 Perhaps these ideas don't inherently hold value, but the problem lies in our lack of a
systematic, neutral method to distinguish between issues that lack value and those that may
hold value in the future.

Among these issues, some were once considered indisputable but are now questioned.
While I don't believe there will ever be evidence denying the Holocaust or proving the
flatness of the Earth, I can't articulate a principle that distinguishes these issues from others
still deemed legitimate discourse. If we can establish such a principle, we may apply it, but as
of now, I haven't encountered one.

Critics argue that, much like any financial market, some individuals possess greater platforms
— larger megaphones. Those speaking the loudest may not always have the best ideas; it
could be a matter of having the most money or being fortunate enough to have the biggest
platform.

Moreover, deep polarization in the United States, where even basic facts like the winner of
the 2020 election are disputed, raises questions about the effectiveness of the marketplace
of ideas. Perhaps it isn't thriving as well in my country, with hopes that other nations fare a
bit better.

That's one theory, likely the most well-developed and complicated. However, I want to touch on
others, and the next one posits that we protect speech for self-realization (B)

B. Theory of Self-Realization

The idea here is that people need to be free of restrictions to live their best lives, to lead fulfilling
lives. They must express themselves not just politically but also in artistic, musical, and scientific
matters. By allowing this freedom, we create a richer society with diverse cultural perspectives,
enhancing its fullness.

Critics argue that this logic isn't exclusive to expression but also applies to various actions. Licensing
requirements on activities are generally accepted without concerns about self-actualization.

Moreover, different countries impose restrictions on certain sexual acts to varying degrees,
demonstrating that limitations exist beyond the realm of speech or expression.

C. Theory of Self-Governance

The third reason for protecting speech is advanced by the Scottish American philosopher Alexander
Michael John, focusing more on politics or political self-governance. He argues that open discourse,
unfettered debate, and discourse on matters of public concern are essential for the proper
functioning of a democracy.

In this view, if we only hear a limited number of sides in a debate, or if certain views are censored,
we lack the necessary tools to make informed choices among all available policies. To illustrate,
Michael John suggests that allowing Nazis to march, despite the discomfort it may cause, contributes
to a healthier democracy. For instance, events like the Unite the Right rally in Charlottesville in 2017,
involving white nationalists and Neo-Nazis, highlight existing social problems. Allowing these groups
to express themselves publicly provides society with an opportunity to address these issues.
Critics argue that this perspective may not go far enough, asserting that speech encompasses more
than just politics and is ultimately a means to self-realization.

D. Streisand effect

This is the final theory, known as the Barbra Streisand effect. The reason I have her up there is
because of something known as the Barbra Streisand effect. Long story short, Barbra Streisand had a
house in Malibu, CA. Somebody took an aerial photo of it in the early 2000s before there was Google
Maps or any sort of Google mapping service.

About 5 people saw the picture, but she was afraid that if more people saw it, they would learn how
to stalk her and use the back entrance. So she sued the photographer, who was not a paparazzi but
an environmental surveyor, sued him for $50 million and wanted the picture restricted.

After that, the picture was downloaded something like 60 million times, and then everyone in the
world who wanted could see this picture. The same logic might apply to censorship.

The government is not good, especially in the Internet era, at censoring ideas. It can try to, but
people will still find ways to spread the ideas to some extent. If the government puts effort into
censoring, people might start to ask why this idea is so dangerous that the government is afraid of
people hearing it. They might become more curious about the censored idea, whereas before, they
may not have cared.

So, the idea is that the Barbra Streisand effect can happen, and censorship can backfire if the
government tries to censor.

IV. History of Freedom of Speech

The concept of freedom of speech, as we discussed through various theories, has historical roots. The
earliest known idea of freedom of speech comes from ancient Athens, where "Parasia" granted
individuals the right to express themselves freely, particularly in government forums and theaters.
However, this right was elitist, limited to specific contexts such as government and theatrical settings
where satire against public officials was allowed without punishment.

A more recent development in the history of freedom of speech is found in the English Bill of Rights.
The Lords asserted that, to uphold their ancient rights and liberties, freedom of speech and debates
in Parliament should not be questioned or impeached outside of Parliament. This right was exclusive
to members of the House of Lords and possibly the House of Commons, emphasizing an elitist and
limited scope.

Throughout history, this concept has expanded. Sir William Blackstone, a significant figure in
common law, argued that liberty consists of laying no previous restraints on speech, including the
press. He opposed prior restraints but accepted punishment for speech deemed illegal after the fact.

Benjamin Franklin, through the Pennsylvania Constitution, contributed to the idea that individuals
should not be punished for their speech. The Napoleonic code, despite containing some provisions
for the liberty of the press, also involved substantial censorship.

V. Comparison with other countries

I'll conclude by discussing the foundation of American freedom of expression law and highlighting
another way in
which it is exceptional—the concise textual provision.

While I cannot definitively claim that the increased protection of speech is solely due to its brevity,
there is a possibility. The American provision states, "Congress shall make no law abridging the
freedom of speech or of the press." Now, let's contrast this with similar provisions in a couple of
other countries.

A. Canada

In Canada, the Canadian Charter of Rights and Freedoms, specifically in Section 2, provides an
extensive list of protected freedoms. However, in Section 1, which precedes Section 2 and may hold a
privileged position in the constitutional hierarchy, it introduces a significant difference. It states that
the freedoms outlined are subject to reasonable limits prescribed by law, demonstrably justifiable in
a free and democratic society.

The drafters anticipate from the start that these rights will face constraints and be subject to
balancing considerations. Notably, in Section 33, Parliament is granted the authority to override a
declaration of unconstitutionality by the Canadian Supreme Court. This power allows Parliament to
enforce a law, even if it has been deemed unconstitutional, for a period of five years, with the option
of renewal after another five years.

This stands in stark contrast to the U.S. model.

B. Germany

In Germany, a detailed list of protected rights is provided, and akin to Canada, there are explicit
limitations outlined in Section 2. The rights are constrained by the provisions of general laws, the
protection of youth, and the right to the inviolability of personal honor.

Notably, the concept of personal honor or human dignity has been explicitly recognized in Germany
as holding a higher position in the hierarchy. In situations of conflict, it takes precedence over free
expression.

C. UK

Lastly, within the Council of Europe, the European Convention on Human Rights has been integrated
into the UK Human Rights Act. It states that everyone has the right to freedom of expression,
encompassing the freedoms to hold opinions and receive and impart information without
interference by public authority.

However, like other examples, this right is typically subject to limitations.

VI. Conclusion
Let me just conclude by noting 2 unusual things about the US system, which you may or may not
know: the state

action doctrine (A) and the notion of judicial supremacy (B).

A. The State Action doctrine

The State Action doctrine is a foundational principle in the United States, asserting that the
Constitution applies exclusively when the government is the actor. This doctrine consists of two key
elements: the action must involve the government, and it must be an actual, affirmative action.

For instance, if a private restaurant explicitly denies service to someone based on race or religion,
stating, "we don't serve your types here," it does not imply the Constitution. This is because the
restaurant is a private actor, and only the government can violate the Constitution. Similarly, if a
police officer, as a government actor, witnesses a person being attacked due to their race but
chooses not to intervene, even when capable, it also does not implicate the Constitution. The
government has no affirmative duty to act; its duty is to refrain from violating rights rather than
providing protection or services.

This concept of negative rights, emphasizing the government's obligation to abstain from violating
rights rather than actively protecting individuals, aligns with a more libertarian constitutional
philosophy. In contrast to some other countries where there's a notion that private individuals could
violate another person's free speech rights, the U.S. legal framework doesn't recognize this. The
Constitution is implicated only when a government actor takes affirmative action that violates an
individual's rights.

Another thing that is a little bit different about the United States that also leads to American
exceptionalism and free speech is the notion of Judicial supremacy (VII).

B. The notion of Judicial Supremacy

This famous quote from Justice John Marshall, notably from Marbury v. Madison, asserts that "it's
emphatically the province and duty of the Judicial department," referring to the courts, "to say what
the law is." While the reasoning may not entirely apply in most countries, it has had influential
implications. According to Marshall, no other body, including the legislature or the president, has the
authority to dictate what the law is – only the courts hold that power.

In the context of constitutional issues, this means that courts must compare all relevant laws, giving
precedence to the Constitution. As a result, every court in the country, even the smallest traffic court
in a rural county, can invalidate a law based on constitutional grounds, and the government is
obligated to respect that decision. Additionally, once a court deems a law unconstitutional, no other
body, except another court, can overturn that

ruling – not Congress or the President. The only alternative to a court decision would be a formal
constitutional amendment.

This concentration of power in the judiciary, particularly in Supreme Court justices, underscores the
significance of individual judges and their decisions. Supreme Court justices, and even some lower
court judges, can attain celebrity status, viewed as thought leaders shaping legal eras. For example, a
period of legal development might be known as the "Marshall era," lasting for decades. This
phenomenon creates a culture where judges, especially those on the Supreme Court, are perceived
as influential figures, sometimes even surpassing the importance of presidents or Congress.

All these elements contribute to the concept of American exceptionalism, and one can delve into an
entire course exploring the nuances of this phenomenon, particularly in the realm of free speech
doctrine under the U.S. legal system.
But I'm going to stop there, I think, and I'm happy to elaborate on any of this or anything else in the
Q&A. Thanks.
Conférence 6 - Emiliano Ruiz - Is law applicable in times of war

Good morning, good afternoon or good evening. My name is Emiliano Ruiz. I'm a professor of
international law at the University of Buenos Aires in Argentina. I teach to several students in
Argentina about an introduction to history of international law and also international humanitarian
law and the use of force.

My intention is to give a very general presentation on the laws applicable in times of war. So the
general question that we will try to answer is, is law applicable in times of war? Basically, what I'm
going to do is a general introduction to what we call international humanitarian law and its current
challenges.

One of the most challenging aspects of debate today when we talk about international law is the use
of force. It concerns when a state can use force against some other state, even against some non-
state actors, such as a terrorist group.

This question, although very challenging, is not new. For many centuries, states have tried to justify
their use of force trying to address the situations when dealing with other states. So it was allowed
for many centuries to use force under international law. There was no prohibition whatsoever when
a state decided to use law that was basically the basis for imperialism and for conquest.

It was only with the Charter of the United Nations that this started to change. Although of course
there had been some precedents before. In Article 2.4 of the Charter of the United Nations, which is
as you probably know, the most important treaty in international law today, it states that all
members of the United Nations shall refrain in their international relations from the threat and the
use of force. This use of force in order to be prohibited should be against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the purposes of the
United Nations.

Of course there are many situations in which states have tried to justify that this article was not
applicable in their case. And here is when we face a lot of exceptions. Probably you know many of
these exceptions. self-defense, for example, is one of the explicit replies that states can use when
dealing with armed forces. Article 51, for example, allow states to counterattack to use force against
another state, or a non state group when it has received an armed attack before.

Again, the Charter also allows for instant the Security Council to use force under Article 42 whenever
there is a breach to international peace and security. Other exceptions are not that clear and in many
cases, especially after 2001, states have tried to use unilaterally the use of force in some very specific
cases mostly related to the War on Terror.

In some cases, when states try to justify their war against terror, they try to use the argument of self-
defense. They try to say that because an armed attack could possibly be held in the future by non
state groups, then it might be possible to use what they called preemptive self-defense of course as
an exception as you can see, this is highly controversial. This is not very clear and it has been an
interpretation by states that was produced in order to deal with very specific situations.

As you can see, we have a number of provisions and regulations concerning the use of force in
international law, but I'm not going to talk about this today because basically this has to do with the
Charter of the United Nations and the legality of the use of force. Therefore, the question that has to
do with what I have been talking about is whether a state can or cannot use force against some other
entity.
What I'm interested to do today is to discuss what happens whenever the armed conflict already
exists.

So let's imagine that one state decides to attack the other one, then the other one might reply the
attack, and we have a situation of war. Now for many years, many people considered that this
situation of war goes against law, and since it goes against law, then law has nothing to do with these
situations of armed conflict.

What I will show today is that, in fact, international law has a number of provisions dealing with
international law, when international law has to be applied in times of armed conflict, basically what
I'm going to do now is to present what we call international humanitarian law.

So what is international humanitarian law? International humanitarian law is a branch of

international law that basically deals with the situations of armed conflict. Its main purpose is
basically to regulate on conflicts to establish the limits of the conduct of states when they are in
hostilities and basically to put some limits to the violence that can be exerted in times of armed
conflicts.

This branch of public international law that regulates the conduct of hostilities is what we called
using a Latin phrase. The use in below that is the law in times of war. As you can see, there is a big
difference to the use of force that I had been discussing so far. In that case, the legality of the use of
force is what we called the use add bellum. That is the law that you can use towards creating war.
The law that you can use in order to justify eventually an armed conflict, so as you can see, there
might be some kind of contradiction in international law.

This contradiction has to do with the very pragmatic purpose of international humanitarian law. You
might be asking why, if war is prohibited as a general principle in the Charter of the United Nations,
International Law has to create a body of rules that governs the conduct of states during those times
of war, that seems a little contradictory.

However, there are two reasons in order for international humanitarian law to exist.

Firstly, because as a branch of international law, it was born before the prohibition of the use of
force.As you can think, for example, in the medieval times it was very common for Knights or for
soldiers to be bound by norms related to honor. In this case there were limits to the way in which
they fought.

Secondly, beyond the historical one, is a pragmatic reason. International law is very practical in these
terms, and of course you might have a general prohibition that establishes that you cannot use force
in international law as a general rule. But in reality, and you can see newspapers every day, war
exists. So basically you have to create a body of rules trying to regulate or to limit the violence in
those times.

Of course, violence cannot be eradicated from armed conflicts. And this is very normal. Armed
conflicts are related with violence. However, the level of violence that can be exerted could
eventually be limited, and in this case, what international humanitarian law will do is to provide a
very interesting game between humanity and military necessity, this is a very particular tension. This
is, as you can imagine, very difficult to distinguish in a very specific situation.
Whenever a state can perform an attack, the way in which that attack can be performed has to strike
a limit. A balance between military necessity and the necessities of humanity. So we have discussed
so far the pragmatic approach and sense of international humanitarian.

What's interesting that international humanitarian law (IHL), is applicable irrespectively of the
reasons that the parties had to initiate the armed conflict, and this is very important because it
shows that the use of force and IHL are different branches of law.

It doesn't matter how the armed conflict began once the armed conflict is there, then you should
apply the bodies of rule which are contained in international humanitarian law.

An interesting aspect has to do with the notion of war. As you can see, in international humanitarian
law, we are not talking about situations of war. War is a term that in public international law, we try
to avoid and we avoid the term war for two reasons.

Firstly, because in order to be in front of a situation of war, international law requires a number of
things.

Reason 1. It requires a set of rules that have to be respected in order for the war to exist for the
status of war to exist, you needed, for instance, a formal declaration of war. You needed the
existence of truces, of armistices, of capitulations, and even you required a peace treaty at the end in
order for the war to be over. In practical terms, all this sort of formalities do not exist anymore in the
20th century, wars have been fought without any sort of formal requirement. So again, the practical
side of international law makes us try to avoid the concept of war.

Reason 2. Because war is generally related to the interaction. The violent interaction and clash
between armed forces of states. So in order to have a war, you have to have at least two or more
states fighting against each other. Again, in practical terms, the 20th century have shown that most
of the situations of violence we have in the international community are not situations of
international wars. Most situations in fact, are only internal conflicts. Conflicts in which violence is
exerted by the government against unarmed group or among armed groups themselves. So again,
war does not seem a suitable concept to be used in these situations.

As a consequence of the rejection of the word war, international humanitarian law has replaced the
word with other one. The expression we use is armed conflict: armed conflict is a word, and it's an
expression that we use, and it's very useful because it does not require any sort of formal elements
and at the same time it can cover, as I will explain shortly, 2 sorts of situations on the one side,
international armed conflicts on the other side non international armed conflicts.

So let's discuss a little about international humanitarian law itself.

I said that international humanitarian law was a branch of international law, a body of rules which
was effectively aimed at limiting the amount of violence during an armed conflict. Now the question
is, how does international humanitarian law achieve this goal?

Basically, we have to distinguish 2 branches of law 2 streams of rules. Of course, this distinction of
two branches is discretional is arbitrary. It's historical, but at a certain point, as you will see, they also
collide, and they also complement each other.

The first branch has to do with what we called the Law of Geneva. The objective of IHL is to reduce
the number of violence in the law of Geneva is achieved by protecting or sparing those people who
do not participate in hostilities or who no longer participate in hostilities. This is very important as we
will see. Because the aim of the law of Geneva is protection, how to protect very vulnerable people in
situations so tremendous as armed conflicts.

The second branch of international humanitarian law is what we called the Law of The Hague and the
law of The Hague deals basically with the limitations of means and methods of warfare. Basically, the
idea behind the law of The Hague is to provide for general rules concerning the use of weapons, what
weapons can be used during an armed conflict? Well, as we will see shortly, the law of The Hague
says that not every weapon can be used. In order for you to use a weapon in order for a state, that
weapon must be proportional to the rational end of the conflict.

Let's focus now on both branches that I have just presented. We will discuss first the ideas behind
the law of Geneva and then we will discuss a little about the law of The Hague. As you can imagine,
the only thing that I can offer now is a very general and broad introduction. There are more than
1000 provisions dealing with international humanitarian law in different treaties.

I will only focus on the general principles and the general ideas behind each one of these branches.
So let's start with the law of Geneva.

I. Law of Geneva
As I said, the law of Geneva is the branch of international humanitarian law that tries to protect and
spare those who do not participate in hostilities or no longer participate in hostility.

So basically the principle here is the principle of distinction. When an armed attack is performed,
when hostilities are conducted, you should make a difference between those that could eventually
be attacked and those people who have to be spared. As we will see also this distinction applies to
objects on the one side you will have objects that can be attacked. On the other hand, you will have
objects that should be spared from the effects of hostility.

So Geneva is very important as a branch of law because basically it brings humanity to the table. It
says that there is a body of rules that protects specifically victims during the armed conflict.

Now I said that the idea behind Geneva is to protect those who do not participate or who no longer
participate in armed conflict. And this is a very interesting distinction that we have to say. Why is
this? Because, of course, there are people who don't participate in hostilities. You can think of many
situations. Basically, the idea of civilians of aid workers of health service providers all these people
are in a situation of armed conflict might be in a situation of armed conflict eventually, but they are
not taking part in hostilities. They are not participating in the armed conflict. So what International
humanitarian law says is that these people should be protected from the effects of the hostilities.

But there's also those who no longer participate in hostilities who also need to be protected. You can
imagine, for instance, members of the armed forces, which were entitled to fight and, for instance,
who surrender or who are injured, or who have received wounds, who are wounded or who are
shipwrecked if a battle happened at sea.

In these cases, these persons, although originally could be the object of attack because they were
fighters, they have to be protected. So as a general rule, how do we qualify these two possibilities of
sparing some people and attacking others? What the law of Geneva says?
It is that the distinction that we have to make is between combatants, and when we talk about
combatants, we talk about all those people who are fighting as part of an armed force, and therefore
are entitled to fight and could be and the general notion of non combatants.

So combatants on the one side, non combatants on the other side. When we talk about non
combatants, we talk about all these categories of people that should be protected because they
never participated or because they participated in the past and because of one of the reasons I gave
decided not to participate anymore or I'm not able to participate any any longer.

So as you can see, the importance of distinction is very high because distinction makes a state or an
armed group decide whether it is possible from a legal perspective to perform an attack, to launch an
attack or not.

Of course, as you will see, there are some cases in which combatants are being the target of these
attacks, which is legal, but at the same time there might be some civilian casualties. Let's imagine
that one state decides in the middle of the non conflict to make an attack against the military forces
of the enemy. This is according to international humanitarian law something which is legal.

But what happens if within the context of that attack, for instance, some civilians who are in the
middle of the enemy armed forces are also being the object of attack? They are also attacked, while
in this case.

We should bear in mind that the practical aspect of IHL says that we have to bear in mind the idea of
proportionality.

What we can call collateral damage means that when an attack is legal, you might in any case be able
to face some sporadic civilian casualties. But of course, if the result is that the casualties are not
proportional to the military objective that you had. In that case, then the attack was against the
principles of international humanitarian law.

One interesting aspect of Law of Geneva is that there's no difference between your enemy's
population and your own. You have to treat your own civilians as well as the civilians of your enemy
state. The only distinction you have to do whenever you have, for instance, a wounded person, a
wounded soldier, or someone who has been injured is for medical reasons. You have to treat those
who are in a more complicated situation before.

What happens with objects? I was talking so far about persons, combatants and non combatants.

When we talk about objects, we have to distinguish between civilian objects and military objectives.
Again, this dichotomy is very clear. When we talk about military objectives, we're talking about any
object, which by its nature, location, purpose or use makes an effective contribution to military
action. And of course, whose destruction total or partial destruction, capture, or neutralization in any
circumstances at that time offers a clear military advantage.

So in order for you to have a military objective, which is a legitimate target in times of conflict. You
have to have a definite military advantage. If one state cannot prove that effectively destroying
something provides a definite military advantage, then you're not facing something that IHL
considered to be illegal.

Of course, again, this might be problematic because it has nothing to do with the nature of the
object. Let's for instance give an example.
Example. If what you're trying to destroy is a barrack in which your enemy has most of its weapons,
then that seems to provide a definite military advantage. Destroying that barrack, destroying that
arsenal means that you are going to be able to get an advantage. You're destroying your enemies
weapons. However, for instance, if you decide to attack a kindergarten or a school, in that case, no
definite military advantage is given.

This has to do with the nature of the two objects, but what happens if your enemy decides to use a
school in order to hide the weapons? This is when international humanitarian law becomes much
more interesting, because we are in the Gray zones.

You cannot establish a clear distinction between what is by nature a civilian object and by purpose, a
military objective. In that case, the state would be able to launch an attack against the school only if
all the measures are provided in order to reduce the level of violence and eventually limit the
number of casualties. For example, attacking the school at midnight or very early in the morning
where you know that no civilians are around.

So again, you see that international humanitarian law is very practical. If you have doubts on the
civilian nature of an object, what international humanitarian law says is that you have to cancel your
attack. So in case of doubt, you should not attack that object. Attacking or not depends on the
circumstances. It does not depend on the nature of a specific object.

Now as you can see, there's a lot of challenges in the law of Geneva. The principles are very clear.
The principle of distinction. You have civilians and you have combatants and non combatants. You
have civilian objects, and you have military objectives, but in practical terms things can become quite
complicated.

First of all, the nature of combatants. I said that combatants, according to the international Law of
Geneva, are those members of the armed forces who are fighting. What about the fighters who do
not belong to an armed force? And this is very complicated.

There are several people who participate at actively in hostilities but cannot be legally and strictly
defined as combatants. For instance, imagine civilians taking up weapons in order to fight to defend
their country or the city. Or maybe hackers who launch an attack without being military personnel
themselves from the distance. Hackers might even, for instance, draw an attack through a drone to a
very distant location. They're not a typical combatant dressed like a combatant in the field of
hostilities.

Not to mention, of course, the situation of terrorists. This is maybe one of the biggest challenges of
international humanitarian law, because terrorists do not behave as combatants. Terrorists do not
show themselves as combatants. They do not carry weapons openly. They do not use uniform and
they do not launch open attacks. Terrorists in general are disguised as civilians and they attack when
it is completely unexpected. So of course, terrorism seems to fall out of the scope of international
humanitarian law.

II. Law of The Hague

As I told you, this is the second branch of this traditional dichotomy that shows that IHL can be
separated in two different branches in order to achieve its main purpose.

Now what is the principle behind the law of The Hague? The basic principle is the limitation of means
and methods of warfare and at the same time, proportionality.
What is the purpose and the aim of using hostilities and conducting hostilities during an armed
conflict? Well, basically the objective is only to limit the violence to the amount necessary to achieve
the aim of the conflict. Which is irrespectively of the reasons that states fight for to weaken the
military potential of the enemy.

This is of course, a rational aim. The aim of an armed conflict cannot be to destroy the enemy, to
eradicate the enemy, because that of course falls out of any single notion of proportionality.

The aim of the armed conflict should always be to weaken your enemy, to try to neutralize the forces
of your enemy in order to eventually get to a victory without superfluous injuries or excessive harm.

So if the purpose is basically to neutralize the enemy, to weaken the forces of your enemy, not all
weapons are going to be allowed. The weapons, which are likely to cause unnecessary suffering or
unnecessary harm or superfluous injuries, according to international humanitarian law, are going to
be prohibited.

As you can imagine, this also poses a number of challenges. Basically, when states decide to
manufacture, to design new weapons, they have to bear in mind the idea that those weapons cannot
be used in a discriminatory way cannot be used in order.

Basically, to attack creating injuries which are well beyond what is expected from a regular
conventional armed attack. What happens with new weapons states whenever they develop new
technology, they have to analyze beforehand whether these weapons that states are used will
eventually cause disproportionate effects.

In this sense, one of the most interesting challenges today of IHL has to do with autonomous
weapons. States are developing weapons which are related to robots that could interact could attack
could require attack in very autonomous ways. This means that there is no human taking a decision
behind the weapon. So how do we assess the effect of a weapon if there is no human mind behind
it?

This of course generates a number of problems, especially within area of international law, such as
international humanitarian law, which basically depends on the will of States and on the decision of
people who interact in armed conflicts on the name of the state or of an armed group.

So we have seen so far the two branches of international humanitarian law. We've seen the law of
Geneva, and we've also seen the law of The Hague, at least in its general principles.

III. What are the sources of all these provisions?

What are the main treaties in which this international humanitarian law is established? Basically, if
we focus on the law of Geneva, we will, we will find the famous Geneva Conventions of 1940.

These conventions, which are inspired by a previous convention of 1864, are from 1949 and at this
stage we have 4 conventions and two additional protocols which were added in 1977.

The idea of these 4 Geneva Conventions is to provide the protection for very specific people and very
specific possible victims of armed conflicts.

The first Geneva Convention protects the wounded and sick soldiers on land during war.
The second one protects wounded, sick and shipwrecked when there is a conflict at sea.

The third Geneva Convention protects prisoners of war and the four Geneva Convention grants
protection to civilians, including occupied territories.

We also have different conventions concerning the law of The Hague. We don't have a single
convention. We have different conventions for different types of weapons.

We can mention, for example, the Convention on Biological Weapons of 1972, the Convention of
Chemical Weapons of 1993, or a specific convention with different protocols on conventional
weapons which produce excessive harm from 1980.

So as you can see, there is a proliferation of conventional instruments.

But all these principles emerged, of course, in Treaty law, have also customary nature. There is
custom which is related to these basic principles and thus states are also obliged and bound by all
these provisions, not only because they ratify the Treaties but also because they have been
developed into a customary rule.

The International Committee of the Red Cross, which is a non governmental organization which is the
guardian of IHL, has prepared a volume in 2005 after a study in which it identified the practice and
the opinion juris of many of these rules. The International Committee of the Red Cross identified 161
different rules apart from state practice. The ICRC is an independent organization which works to
protect the lives and the victims of armed conflicts.

Another interesting aspect concerning international communitarian law is the situation in which it is
applied. I said that we are not speaking about war and that we talk about armed conflict.

IV. How do we classify armed conflict according to international

humanitarian law?
This is very important because the distinction between armed conflicts is what is going to give us the
legal basis for the provisions which are applicable.

We have to distinguish two types of armed conflicts under international humanitarian law.

On the one side, international armed conflicts that is armed conflicts. Between states in which armed
forces of different states fight against each other.

And what we call non international armed conflicts. In non international armed conflicts, we can
have civil wars, we can have a number of conflicts which are within the territory of the state in which,
for example, the governmental forces are fighting against rebel group or an organized armed group
within the territory, or even when there are no governmental forces involved. We might have several
different organized groups fighting against each other.

We have two different situations in which different provisions apply. When we talk about
international armed conflicts, we are going to see that all four Geneva Conventions of 1949 as well as
additional protocol 1 of 1977 are applicable.
So if you can add the provisions, you will see that we have more or less 800 different provisions
applicable to international armed conflicts.

What happens when we talk about non international armed conflicts? The situation there is very
different and it's very different because states are generally reluctant to accept international
obligations when it is a situation that takes place in the territory of that state. They are considered to
be internal situations and therefore states do not like international law to be applicable there.

This can be seen in the number of provisions which apply to non international armed conflicts. In
1949, when the four Geneva Conventions were approved, only one article of the four Geneva
Convention was applicable to non international armed conflict and that article was article 3, which is
considered to be a sort of mini convention because it contains very essential rules of the Geneva
Conventions in a very condensed format and making them applicable to situations of a non
international character. You can see only one article among the hundreds of articles which were at
the same time applicable to international armed conflict.

In additional Protocol 2 in 1977, for the first time we can see an international treaty devoted
exclusively to situations of non international conflicts. However, in order to be applicable, this
additional Protocol 2 requires a number of

elements. It requires an armed conflict between governmental forces and dissident armed forces or
organized armed groups which are under responsible command which exercised the control over a
part of the territory. This control enables them to carry out sustained and concerted military
operations. And of course, the armed group is also able to implement the protocol.

So as you can see, we have 4 requirements that have to be complied with by the armed group which
faces the governmental forces. So in order for additional protocol to apply, the non international
armed conflict should be of a certain level of intensity, because the organization of the armed group
that faces the state has to be a very strong organization.

The challenges again here are very interesting because this dichotomy that tries to separate
international and non international armed conflict is heavily criticize.

For example, what happens when you have a non international armed conflict but which does not
take place in the territory of one state? For example, one armed group located in the territory of a
third state attacks the government of another state. Well, of course this is not identified at
international conflict and it's not identified as such as a non international armed conflict in IHL
because it does not take place in the territory of a single state. So doctrine and interpretations have
tried to enlarge the notion of this classification and they talk about an exported non international
armed conflict, which is a category which was not in the original Geneva Conventions.

Again, another situation in which there is a challenge is a non international armed conflict in which at
a certain point a third state or international organization decides to intervene. You have a
government forces against an armed group which is a non international armed conflict in a
traditional sense, but then you have another state which gives support and intervenes in order to
support either the state or the armed group. In this case, again, the traditional dichotomy that
separates international armed conflict and non international armed conflict does not seem to be.

And here the doctrine and also the International Court of Justice, when dealing with this in a case
between the United States and Nicaragua in the late 80s, established that this can be considered an
internationalized, non international armed conflict. It is a non international armed conflict that
becomes internationalized because of the intervention of this third party. This third party, for Iran
conflict to be internationalized, has to support and be in a certain degree of control over one of those
two parties to the conflict.

Another complicated situation is the War on Terror. Can we say that international humanitarian law
is applicable to the armed attacks which are performed by different states against terrorists
throughout the world?

Again, this has no simple answer, and several tribunals have said that since this is not an
international armed conflict, because there are no, there are not two states or many states fighting
each other because the terrorists are an armed group. Then at least you should apply the minimum
standards of international humanitarian law which have to be respected at all times of armed
conflict, which is basically common article three of the Geneva Conventions (the mini convention I
was talking about). At least those general principles which are applicable to all on conflict have to be
respected when we talk about the War on Terror.

One last point has to do with violations of international humanitarian law and eventually
punishment. As you can see in times of war, we have a number of provisions. The Law of Geneva and
the law of The Hague, which are applicable.

V. What happens when during the context of an armed conflict,

some of these provisions are violated?
A. Individuals

First of all, the thing let's think about individuals, soldiers, members of armed groups which commit a
certain violation or breach. One of the rules which are applicable to their specific situation. Of course,
when violations of international humanitarian law occur, states are obliged to prosecute alleged
offenders.

So domestic courts, they play an essential role in the enforcement of international humanitarian law
and of course, in limiting impunity. But in addition to national jurisdictions, violations of international
humanitarian law can also be prosecuted by various International Criminal tribunals.

This is what we called International Criminal law, according to International Criminal law, various
international responsibility on individuals who carried out actions which were against obligations
arising from internal.

We have a number of historical examples:

 - The military tribunal for Nuremberg and the Far East after World War Two were the first
examples.
 - The ad hoc tribunals created by the United Nations Security Council for the cases of the
former Yugoslavia

and Rwanda (90s).

And nowadays we even have a permanent International Criminal Tribunal, which is the
International Criminal Court, which was created by a treaty, the Rome Statute, in 1998 and
which has the possibility of prosecuting individuals who have committed serious crimes.
 Among those crimes, we find war crimes. War crimes are the crimes which are basically
related to international humanitarian law, because they have to do with the violations of the
laws and customs applicable in times of war.

B. What happens with the state?

States which are of course the most important subjects of international law, are also bound
by the principles of international humanitarian law. Since states have ratified their
conventions and states are also bound by the customary rules applicable in times of armed
conflict.

So what can we do with the state when a state decides to violate international humanitarian
law? Well, basically, and here the situation becomes a little more problematic. You know that
in international law, states are sovereign, so we can only resort to judicial tribunal if the state
is willingly accepting that jurisdiction.

So if the state accepts the jurisdiction of an international tribunal, then eventually the state
could be taken in order for its responsibility to be decided by judges.

Examples include, for instance, the human rights regional mechanisms. You have several
examples in Europe, many cases at the European Court of Human Rights.

 - Europe. The case of Isayeva versus Russia, which was decided in 2005 and which dealt with
indiscriminate bombings in Chechnya by Russia.
 - Americas. The Tablada report in 1997 in which it was decided that Argentina was
responsible because eventually the military used excessive force and illegal means when they
tried to recapture a military base which was taken by civilians. This was not decided by the
Interamerican Court itself, but a report of the Interamerican Commission says that the
Government of Argentina was to be held responsible because of the violation of common
Article 3.

Also, the International Court of Justice at The Hague can also take states in order for the
responsibility concerning international humanitarian law is concerned. In many different
situations during the 80s, 90s and even in current times, the ICJ has received several
complaints in which some states are claiming that other states have violated their obligations
which are essentially established in the Geneva Conventions and in several treaties which are
related to the limitation of means and weapons of warfare.

VI. Conclusion

So to conclude, as we have seen, you've seen that international humanitarian law is a very pragmatic
branch of international law which deals with a very extraordinary situation which has to do with the
situations of armed conflict and extreme situations in which people are very vulnerable.

In those situations, international law gives several legal answers.

The Law of Geneva provides for the protection of those victims. The law of The Hague provides for
the limitation of the weapons that can be used in times of armed conflict.

Of course, since armed conflicts change since technology changes, then the challenges in
international humanitarian law will also change.
The big question is whether we are needing now new instruments that could cover situations that, of
course, were not common in 1949 or 1977. New challenges that need to be faced.

Or if we can still rely on these old conventions and customary rules, which could be eventually used
and interpreted to also cover possibly new situations.

So thank you very much for your interest for your attention, and I do hope that international
humanitarian law is of your interest and that you might be willing to go on reading about new
challenges of this amazing branch of international law.