Openingstoespraak voor de conferentie ‘Styles of legislation’ European Academy for Law and Legislation
Do other people’s tools only work in other people’s gardens?
Ladies and gentlemen,
1.
It gives me great pleasure to have this opportunity to welcome you to the conference on the subject of “styles of legislation”, organised by the European Academy for Law and Legislation.
As stated in the information material produced for today, “This conference officially marks the emergence of the Academy as a knowledge and education institute for international legislative lawyers.”
With this phrasing, the Academy has elegantly sidestepped the fact that this conference is not the actual start of activities at the EALL…
Indeed, the EALL has already been active since the spring of 2009, working to fulfil its mission ”to provide a high quality educational and activity programme, bearing the trademarks of an integral approach to legislation, a comparative perspective, and a fruitful mix of theory and practice”.
You may recognize this quote from the Academy’s website, which you probably have examined before deciding to attend this conference.
It struck me that I was not able to find even one Dutch sentence on the website.
I take it that this is intentional, in order to make sure that foreign participants do not feel any less welcome than Dutch participants.
And of course this is exactly how it should be, with a conference held here, in ‘the legal capital of the world’, as we like to describe the city of The Hague.
It is also an attitude that is especially befitting the subject of this event, since the purpose of this conference is to bring together academics and professionals from many legal cultures.
I am sure you are all eager to start. But before you do, I would first like to make some introductory remarks on the subject of comparative law in general and how it can benefit us all.
2.
An axiom which is often referred to as the Law of Gardening states that ‘other people’s tools only work in other people’s gardens’.
Whatever the truth of this axiom may be with respect to gardening, it is certainly wise to – at least – bear it in mind while engaging in comparative law.
As we all know, law and legislation have their roots in the cultural, moral, and sometimes religious cornerstones of a society.
Principles of justice such as equality, legal certainty, and the protection of basic liberties are safeguarded in, and by means of, the laws of a society.
And although this description of the function of law is by definition common to all societies that uphold the Rule of Law, the actual content of those laws, or the procedures leading up to their implementation may vary greatly.
There is a huge number of factors that contribute to these divergences. Just to name a few:
- The relative appreciation of the, often conflicting, values at stake differ from society to society;
- Historical, geographical and organisational differences can lead to preferences for specific methods and instruments that are not shared by other societies;
- An often overlooked factor has to do with the fact that ‘law in action’ is sometimes quite different from the law as it reads in the books.
The way laws are applied in everyday practice – by, for example, the administration, the enforcing bodies and the courts – often has a defining impact on the effect of those laws, which may not be apparent while studying the text of the law.
Each of these factors, and there are quite a few more, have an influence on the choices a society makes when deciding upon the manner in which a given issue should be regulated.
In short, there is an almost dazzling array of possible variations in circumstances that are relevant for the correct appreciation of a society’s style of legislation, the products of this style, and its effects, as seen in practice.
As a matter of fact, if you pause to think about this, you may end up wondering why we should even bother with comparative law.
3.
Now, for those of you who are beginning to have doubts as to whether you made the right choice to attend this conference, there is of course more to be said about this.
In the previous sentences I have intentionally used the term ‘societies’ rather than ‘nations’ or ‘countries’.
This is because in this day and age societies (as the subjects of legislative action) tend to a much lesser degree to be defined by the lines on a map that were agreed upon in some treaty or other.
Instead, the new borderlines between societies are increasingly defined by international travel, trans-border commerce and the flow of information by electronic means like the Internet.
This has given rise to an increasing interaction between legal orders of countries – sometimes intentional, for example with respect to international electronic commerce, but at other times unintentional and unforeseen.
This is especially the case with the member states of the European Union, with the common basis of EU law that we all have to implement.
As EU member states we have learned the advantages as well as the difficulties that come with the effort to harmonize existing legal systems, and we are still facing questions with respect to this matter.
What good, for example, is a ban imposed by one country on certain acts or goods, if a citizen is legally allowed and practically able to obtain those same goods and services right across the border?
There is, of course, a legal approach that we could use to answer this question, which would focus on the rules and treaties on jurisdiction, perhaps also paying attention to the enforceability of such a ban.
However, an approach like that disregards, in a way, the day-to-day reality, and the effects it has on the usability of legal concepts.
4.
Can comparative law help to prevent such conflicts?
Yes, I think it can – but only if we are able to use it as a means to predict problems, instead of just a tool to solve them.
Let me explain this by means of the example of a tourist travelling to the United States or the United Kingdom.
He or she is usually carrying the standard equipment of the modern traveller: a digital camera, a mobile phone and perhaps even a laptop.
The tourist also brings along the battery chargers that are needed to operate those devices – only to find out that the plugs do not fit into the sockets in their hotel rooms, because European plugs differ from British or American plugs.
Why is this? The functional requirements concerning wall sockets and plugs are basically the same everywhere: they have to work and they have to be safe.
For some reason however, British and American plugs use flat pins to connect to the wall socket, while continental plugs use round pins.
I think we would all agree that if one of those types of plugs and wall sockets would have compelling advantages over the other types, that superior type would probably have been introduced everywhere by now.
Since this is not the case, it is safe to assume that, from a functional point of view, it does not really matter which type of socket you choose to use.
The consequences of this insignificant choice however, are very significant.
This is demonstrated by the unfortunate traveller I just mentioned who will not be able to use his mobile phone after the battery runs out unless he finds an adaptor for his plugs.
This has created an industry that does nothing but create adaptor plugs, with all the costs and environmental impact involved, just because we have made these different choices a long time ago.
My point is that, at that moment in the past when those decisions on plugs were made, whatever the choice had been, it would have been relatively easy to accept and implement one choice for all parties.
At this moment however, it is almost impossible to change the decisions we made in the past because of the costs incurred and the hassle it would take.
This brings me to the purposes of comparative law, in particular in the EU – because you too are designers.
The choices you make will sometimes define the way your legislation will be formulated for years to come.
This is illustrated by the Dutch experiences in the field of equal treatment legislation.
The cornerstone of the Dutch legislation on this subject had always been to prohibit making a distinction on the basis of the discriminatory ground, unless this was explicitly allowed.
EU legislation meanwhile took a different approach by prohibiting ‘discrimination’, which is by definition a non-allowable form of making a distinction.
Because of this, EU directives pay relatively little attention to the criteria involved in cases whereby making a distinction would be allowable, because these criteria are considered to be incorporated in the legal definition of discrimination.
The Dutch system, however, requires a more explicit formulation of those criteria, which has repeatedly given rise to questions about the conformity of Dutch legislation with the EU directives.
The problem with adapting our system of legislation to that of the EU is that an intricate set of rules, the result of sometimes decades of political debate and (national) jurisprudence, would appear to be turned upside down, all at once.
You may understand that this requires a careful approach, and a lot of study – even though there is no difference of opinion concerning the content of the legislation.
This shows how important it is to prevent cases like this from happening in the first place.
Now it is evident that we can never guarantee that situations like these will, in future, be avoided.
It is clear to me, however, that what is required of us is that we improve our knowledge of the European and international legal playing field of which our national legal orders are a part.
This is why I gladly agreed to open this conference today.
One legislator’s positive – or bitter – experience can be another legislator’s best practice.
There is nothing wrong with using this conference as an easy way to do some ‘cherry picking’ among the ideas and best practices that will be presented to you by the speakers.
I would like to urge you to also use this opportunity to develop your professional antennas for those differences between our legal systems that are less obvious.
This may enable you to also spot those diverging elements in our legal systems that today may seem insignificant, but in future could have major consequences.
This does not mean to say that such differences are always wrong, or should be avoided at all costs.
What I do mean, is that we should strive to be aware of them, so that today’s legal technicalities of minor interest will not prove to be the cause for tomorrow’s political stalemate.
5.
Ladies and gentlemen,
To come back to the Law of Gardening: other people’s tools may work fine in your garden as well – but be prepared to not only study the content of the toolboxes, but also the gardens in which they are used.
Let me close off in style by wishing you a ‘fruitful’ conference; I for one look forward to the results this conference will have.
Since there are quite a few members of the legal department of my ministry as well as those of other ministries present, I am confident that we will benefit from your knowledge and experiences, as I hope you will benefit from ours!
Thank you for your attention.