The “living law” theory: constitutional interpretation and the development of the EU legal order

https://doi.org/10.63189/BSNN4694

1.     Introduction

   Constitutional interpretation plays a crucial role in the European legal system and requires careful analysis of the reasoning tools used by constitutional courts. This study focuses on one such tool, the “living law” theory, and its role in shaping the European legal order. The theory posits that the law is a living document that evolves through the combined actions of constitutional judges and political practices. It has been developed within a specialised doctrine[1] and is reflected in the case law of constitutional courts, which wield significant influence in shaping legislation. This research examines theoretical and comparative legal benchmarks, then focuses on the case law of the Constitutional Court of Romania (CCR), where the “living law” theory has been invoke. It aims to provide an overview of the role and limitations of constitutional interpretation in light of this theory within the context of the European Union’s normative pluralism.

    2.  General framework

    During a lecture explaining the concept that would later become synonymous with the theory of “living law”, Professor Eugen Ehrlich remarked that ‘the composition of society changes every day, every moment, but the letter remains unchanged (…). In order for the case law to make an agreement between written and living law, it must find new legal forms, other regulations, other subterfuges, if it prefers them. For this, living law must be studied, but not by researching texts, where we will find nothing, but by looking for it where it exists: in villages, cities, fields, forests, mines, factories, facilities, trading houses, banks, and then we shall study the document’.[2] This perspective is primarily sociological, centred on the idea that living law is not embodied in legal documents but may instead be discovered through direct observation. This approach has been analysed and further developed in legal studies,[3] distinguishing, inter alia, between “law beyond the law”, “law without the state”, and “order without law”, in correlation with legal pluralism and judicial activism.

     These interpretations raise questions regarding the application of the “living law” theory in judicial interpretation, which encompasses multiple dimensions: the potential to establish a modus operandi in the relationship between ordinary judges and constitutional judges within the framework of incidental constitutional review (as initially applied by the Italian Constitutional Court in 1950 and later adopted by other courts, such as the French Constitutional Council in resolving the question prioritaire de constitutionnalité);[4] the adaptation and expansion of legal texts ‘to keep pace with modern developments and changes in the prevailing societal attitude’,[5] as observed in the case law of the European Court of Human Rights (ECHR) in the application of the Convention for the Protection of Fundamental Rights and Freedoms; or the justification of judicial lawmaking, described as a ‘justification of last resort for judicial lawmaking or, in other words, the revision of legal norms under the pretext of the need for an evolutionary interpretation’.[6] 

3. “Living law” theory in the case law of the Constitutional Court of Romania

The “living law” theory does not have an extensive history in the case law of the CCR.[7] Mentioned somewhat marginally and through an obiter dictum, this theory was utilised in 2011 in a landmark decision by the Court. This decision provided a salutary correction to an interpretation that had unjustifiably restricted access to constitutional justice for nearly two decades. The issue arose after the CCR found, in another case,[8] that a court of law, specifically the High Court of Cassation and Justice, could undertake the constitutional review of repealed rules—a jurisdiction consistently refused by the Constitutional Court.  

    Through Decision No. 766/2011,[9] the CCR reinterpreted the term “in force” as used in Law No. 47/1992[10] in a manner likely to widen access to constitutional justice. This reinterpretation allowed repealed rules to be subject to constitutional review, provided they were applicable to the litigation in which the exception of unconstitutionality was raised. On this occasion, the CCR asserted that society evolves, stating that the ‘law is a living law, so that, together with the society, it must also adapt to the changes’. It affirmed its power to review laws ‘without making this review conditional on the removal, no matter in what form, from the active fund of the legislation of the act criticised for unconstitutionality’. In this initial decision, the precise weight or meaning of the theory within the reasoning leading to the CCR’s conclusion remains unclear. The living law theory emerges as “another reason” (alongside the case law of the ECHR and other constitutional courts) that justifies the CCR’s change in perspective or jurisprudential upturn. Later, in a 2016 decision,[11] the CCR elaborated on the meaning attributed to the use of the “living law” doctrine in Decision No. 766/2011. It clarified that ‘the reference rules in carrying out the constitutional review should provide increased legal protection to the subjects of law’ (par. 19).

    Moreover, this is the primary sense in which the “living law” theory is applied in the case law of the CCR, focusing on the following ideas: the living law doctrine directly influences the determination of the normative content of the reference rule—the Constitution; the Constitutional Court is the sole jurisdictional authority empowered to make such an interpretation; and the reference rules for constitutional review must ensure enhanced legal protection for the subjects of law (‘the upward development of this protection being noticeable in the case law of the Court, an aspect that allows it to establish new requirements for the legislator or to adapt the constitutional requirements already existing in various fields of law’.[12]) Building on this reasoning of the jurisprudential upturn, the CCR issued solutions by which, for example, it declared unconstitutional[13] the phrase ‘as well as in other pecuniary claims of up to RON 1,000,000’ in a law preparing for the implementation of the Code of Civil Procedure. This decision reinstated its earlier stance concerning provisions where the right to appeal was suppressed based on a monetary threshold.[14] Similarly, the CCR found unconstitutional the legislative solution in Article 118 of the Code of Criminal Procedure, which does not regulate the right of witnesses to remain silent and avoid self-incrimination,[15] thereby reconsidering its earlier practice on the matter.[16]

The CCR’s case law also highlights instances where social development justified the application of the living law theory, rather than relying solely on its independent evaluation of standards for protecting fundamental rights, such as those influenced by the acceptance of ECHR standards. For example, the CCR declared unconstitutional the provisions of Article 270(3) of Law No. 86/2006 on the Romanian Customs Code,[17] due to the absence of a threshold value under which acts described in the article would not constitute crimes. In overturning its established solution through previous case law, the Court noted, inter alia, that the aspects held in its analysis, ‘through their axiological consistency and temporal persistence, bring into question an indisputable social reality, which represents a necessary premise for the adaptation of the already existing constitutional requirements in the sphere of the criminalization of acts of contraband that harms the protected social values—the State budget and the State border regime’.

This latter application of the living law theory aligns closely with the case examined in this study, specifically a reinterpretation of the presumption of lawful acquisition of assets enshrined in Article 44(8) of the Constitution. According to the Romanian Constitution, this presumption guarantees fundamental rights, and its removal is prohibited under Article 152 (Limits of the Revision). Therefore, several attempts to remove or reformulate this presumption have been deemed unconstitutional.[18]

     After Romania’s accession to the EU in 2007, a revision of the Constitution initiated by the President of Romania upon the government’s proposal once again questioned the presumption. The CCR declared this amendment unconstitutional but noted that ‘the regulation of this presumption does not prevent the primary legislator or its delegate, in applying Article 148 of the Constitution – Integration into the European Union, from adopting regulations that enable full compliance with Union legislation in combating crime’. The CCR specifically referenced the Council Framework Decision 2005/212/JHA of 24 February 2005 on the Confiscation of Crime-Related Proceeds, Instrumentalities, and Property.[19] The decision adopted (No. 799/2011) is historic and fundamental in the context of constitutional relationships within the EU for several reasons.

First, it marks the inaugural invocation of an EU secondary act during the constitutional review of a proposed constitutional amendment, despite the absence of direct effect. However, subsequent case law affirmed its indirect effect in applying the living law theory. Second, it illustrates the CCR’s intent to interpret the Constitution in a manner that permits coexistence within the EU normative system. In this context, the interpretation of fundamental rights protection standards shifts from the usual rationale of “increased protection to legal participants” to adapting the standards by requalifying a constitutional presumption previously considered absolute into a relative one.

This approach was crucial in later rulings on the constitutionality of the extended confiscation security measure introduced by Law No. 63/2012 and Law No. 286/2009 of Romania, which transposed Council Framework Decision 2005/212/JHA of the European Union.[20] In the decision pronounced on that occasion, the CCR introduced into its “arsenal” of argumentation both the precedent established by Decision No. 799/2011 and the “living law” theory. This theory was substantiated by references to the case law of the ECHR (Judgment of 7 July 1989 in Case Soering v. United Kingdom and the Judgment of 29 April 2002 in Case Pretty v. the United Kingdom), supporting the assertion that this doctrine (living law concept; diritto vivente) is ‘far from being only a doctrinal philosophy’, and that it is ‘widely accepted and applied both at the level of the Constitutional Courts and at the level of the European Court of Human Rights’.[21] Beyond this extensive reasoning, there is a discernible modulation in the interpretation of a constitutional presumption aimed at identifying a modus operandi within the framework of legal pluralism. This rationale is reminiscent, mutatis mutandis, of the Italian Constitutional Court’s use of the same “living law” theory in the previous century, albeit in a different context.

 4. Conclusions

 Although not immune to criticism, the “living law” doctrine employed by the CCR serves the purpose of identifying interpretive mechanisms capable of providing a persuasive explanation for the constitutional judge’s decisions, particularly in cases involving an established and well-developed body of case law. This theory is a valuable tool for unifying legal orders and facilitating their articulation.

  Of course, the limitations of this interpretation—at the confluence of the powers of the legislator versus the judge—will remain a subject of debate, alongside the issue of judicial activism. As noted in a study examining interpretive methods in the case law of the ECJ,[22] the “activism versus self-restraint” discourse is misconceived and unproductive unless one first resolves the question concerning the court’s role. Given the constitutional court’s role, the judge’s prerogative to be “la bouche de la loi”,[23] according to the well-known formula, must be exercised with diligence and competence, reflected in coherent, structured, and legally persuasive reasoning.[24]

[1]Drago, G., (2013), Les mutations constitutionnelles: Notion, types, causes. Essai de classification, in Les mutations constitutionnelles, Société de législation comparée, Collection “Colloques”, Volume 20, p. 201.

[2] Ehrlich, E., (12-19 December 1920), published in the newspaper Neamul Românesc, About “Living Law”, Conference held at the South-East European Institute, 1920, 1921, Available at https://www.constcourt.md/public/files/file/Publicatii/2018/Eugen_Ehrlich_-__Despre_dreptul_viu.pdf.

[3] Murphy, T., (2012), Living Law, Normative Pluralism, and Analytic Jurisprudence. Jurisprudence, 3(1), pp. 177-210, Available at SSRN: https://ssrn.com/abstract=2146667, Accesed 1 March 2024.

[4] Maziau, N., (2011), ‘Brefs commentaires sur la doctrine du droit vivant dans le cadre du contrôle incident de constitutionnalité, Retour sur l'expérience italienne et possibilités d'évolutions en ’rance', R. Dalloz, D, 529. Available at https://www.dalloz.fr/lien?famille=revues&dochype=RECUEIL%2FCHRON%2F2010%2F0525, Accessed 1 March 2024.

[5] Theil, S., (2017), Is the “Living Instrument” Approach of the European Court of Human Rights Compatible with the ECHR and International Law? https://doi.org/10.17863/CAM.8478.

[6] Voicu, M., (2018), ‘Some Considerations Regarding the Application of the “Living Law” Doctrine in the Case Law of the Constitutional Court of Romania’. Available at https://www.juridice.ro/essentials/2757/unele-consideratii-privind-aplicarea-doctrinei-dreptului-viu-in-jurisprudenta-curtii-constitutionale-a-romaniei, Accessed 8 March 2023.

[7] The CCR started operating in 1992, based on the democratic Constitution approved by referendum in 1991.

[8] Decision No. 838/2009, Official Gazette No. 461 of 3 July 2009.

[9] Official Gazette No. 549 of 3 August 2011.

[10] Law No. 47/1992 of the Organisation and Operation of the Constitutional Court, republished in the Official Gazette No. 807 of 3 December 2010.

[11] Decision No. 308/2016, Official Gazette No. 585 of 2 August 2016.

[12] Decision No. 356/2014, Official Gazette No. 691 of 22 September 2014; Decision No. 276/2016, Official Gazette No. 572 of 28 July 2016; Decision No. 308/2016, Official Gazette No. 585 of 2 August 2016; Decision No. 369/2017, Official Gazette No. 582 of 20 July 2017.

[13] Decision No. 369/2017, Official Gazette No. 582 of 20 July 2017.

[14] Pintilie, C., (2024), Est Modus in Rebus: Constitutional Imperatives Applicable to the Regulation of Appeals in Administrative Disputes, Forum Juridic, 1, Analele Universității din București – Seria Drept, p. 83.

[15] Decision No. 236/2020, Official Gazette No. 597 of 8 July 2020.

[16] For the previous solution, see Decision No. 519/2017, Official Gazette No. 879 of 8 November 2017.

[17] Decision No. 176/2022, Official Gazette No. 451 of 5 May 2022.

[18] Safta, M., (2012), ‘Presumption of Lawful Acquirement of Property and Confiscation of Unlawfully Acquired Property in the Case-Law of the Constitutional Court of Romania. The Reference Constitutional Framework for Regulating the Extended Confiscation’. Juridical Tribune (Tribuna Juridică), 2(1), pp. 107-127 (English version); pp. 128-147 (Romanian version). Available at: http://www.tribunajuridica.eu/arhiva/An2v1/nr1/art4.pdf, Bucharest Academy of Economic Studies.

[19] Decision No. 799/2011, Official Gazette No. 440 of 23 June 2011.

[20] Decision No. 356/2014, Official Gazette No. 691 of 22 September 2014; Decision No. 11/2015, Official Gazette No. 102 of 9 February 2015.

[21] Ibidem.

[22] Lenaerts, K., and Gutiérrez-Fons, J.A., (2013), ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, /9, Academy of European Law distinguished lectures of the academy, Available at https://cadmus.eui.eu/handle/1814/28339, Accesed 1 March 2024.

[23] de Montesquieu, C., De l’Esprit des Lois, LXI, apud To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice, AEL, (2013)/9, Academy of European Law distinguished lectures of the academy.

[24] Voicu, M., (2018), ’Some Considerations Regarding the Application of the “Living Law” Doctrine in the Case Law of the Constitutional Court of Romania’. Available at https://www.juridice.ro/essentials/2757/unele-consideratii-privind-aplicarea-doctrinei-dreptului-viu-in-jurisprudenta-curtii-constitutionale-a-romaniei, Accessed 8 March 2023.