The juridical regulation that must be addressed, translated by an efficient juridictio, is the cement of the Kantian concept of the perpetual alliance, carrying the eternal Peace. The reign of the Law is thus firstly an imperative touching the very first aim of the European Union: the Peace on a continent which has ripped itself, which has precipitate itself twice, carrying in the same time the rest of the world, in a collective suicide with the power of identity. Linking the strong to the weak, the reign of the Law re-draws the traditional juridical debate by giving the sense of responsibility from the first to the second, avoiding all coercive constraints on this one and installing dialogue. The tool is the interdependency and the pedagogical goal is the consciousness of the repercussion of its own actions upon the other actors. The Law is in this way  imposed imperatively to the strong, and thus to the force, while the European History was constellated of juridical cases legitimating a priori and a posteriori the use of the force, the force making the Law, by the jus ad bellum (casus belli) and the jus in bello, in order to justify its own existence. The European Law is thus not a part of the International Law, it is far more than this one: it is the Supranational Law. It permits the European cosmopolicy. It is a guarantee of Peace, and the undisputable progress to evolve in an area of juridical equity, of equality –admittedly relative, depending on the States, function of the demographical and economical variables– between the strong and the weak.

The Reign of the Law has a political quintessence. Because imposed to everybody, it affirms and obliges to a group consciousness, higher than the individual and national consciousness. And that is the fundament of the policy. The European Union is not an economical union. If its first object, its initial content, its launchpad, has been the communitarization of economical sections by the European integration of national markets, from industry to currency (and perhaps one day the budgetary achievement), the union is in itself ontologically political. It is the Reign of the Law which is the ontological link between the technical policy and the philosophical reality. Despite it has been untold in a first time and then formalized by the Court of Justice of the European Communities in 1963 by the rulings Costa versus ENEL and Van Gend en Loos versus Nederlandse administratie der belastingen, it is obvious that the reign of the Law was the key-point of the visionary initialization of the Union’s fathers. Because when Robert Schuman impulses, the 9th may 1950, the creation of the European Coal and Steal Community, there is, in the heart of his constructive thought, a Court of Justice, this CJEC precisely, which proves since its creation, like it was predict, its essentiality by jurisprudence in the communitarian affirmation of the reign of the Law. This one corresponds in the same time to the imperative cement of Rousseau’s social contract and the Weber’s conception of rational legitimacy. But if the European Law is imposed to the States (The Queen versus Secretary of State for Transport, 1990), what constitutes what we may call a “magna politica juridictio”, it makes it –and this is the proof of its anti-totalitarian quintessence– in the interest of the citizen (Francovitch and Bonifaci versus the Italian Republic, 1991), and reveals itself also what we may call a “proxima politica juridictio”.

If the reign of the Law is the first acquis communautaire to adopt, the notion of acquis communautaire is integrated in the reign of the Law, in such a way that the one and the other draw, at the top of the juridical communitarian connexions, a correlative and rot proof diptych. It remains to the institutions the prerogative of forming the different ways of communication and power relationships, to the people the most important act: to decide. The reign of the Law spreads out all of these: the Commission by its prerogative of guardian of Treaties, the Council for the legislating decisional and the engagement of the absolute –and questionable in a globalizing world– sovereignty of the State, the Parliament because the reign of the Law could not exists separated from democracy (it is its child), the CJEC, of course, mentioned above. The people, the European people, has to create, but also to respect the Law. The institutional connexions, backed by the hierarchy of the communitarian norms, are balanced in order to make the Law have a reign in share, in order to provide the institutional plurality, proper to the partition of powers, as the guarantee of this reign which exists, which can exists uniquely like a transversal expression coming in from the people. Here is why the reign of the Law is inseparable from democracy.

The expression “reign” calls in evidence the notion of absolutism. But if the political absolutism is the logical consequence of the divine immanence of the monarch, the juridical absolutism can be theological or secular. And it is this last one which is here relevant in the collective constructing of the European area of Law. Because this precise reign is not placed in the dichotomy between regnum and sacerdotum, but overhang the debate, so that the personal or collective idea system can live by its theoretical beliefs in an earthly or celestial immanence of this reign, while the real immanence of the reign of the Law is in fact transcendence. This property confers, at the first sight, an ascendance more Romano-Germanic to the absolutist nature the reign of the Law. But, obviously, it’s by consensus that it’s built, that it’s applied, that it’s adapted. And this is the answer both to the political side of absolutism (which is proved here democratic and not tyrannical) and to the juridical side (which tells what is and rules it). And the jurisprudence of the judge is at least as fundamental (it revealed besides decisions more communitarianist and less biased toward this or that national partialities) as the work of the legislator. Consequently, by the repartition “rational Romano-Germanic juridical principles”/“pragmatic casual relativism of the Common Law”, the reign of the Law alienates any juridical system. It melts these ones. While the different applications are sometimes indicative sometimes imperative, it can be defined neutral or balanced. In the both cases, and even in the absence of advance in the European process, the reign extends itself, conformably at its obligation of optimization of its service toward the collective and the individual.

It could be frightening, like a multiplying-tentacles octopus, an awful antic myth, where the gorgon would threat the individual freedom. The troubles exist: permanent legislating, congestion or even asphyxia of the tribunals, administrative amplification. Judiciarization and juridicization go together, and need absolutely fast adaptations, an integral efficacy, data compilations, and decision’s efficiency. But doesn’t condemning the end because of its means reveal defeatism? Isn’t it an easy escape to avoid the healthy political work and to fall into the always facile populist solutions? The reign of the Law is not itself the impeachment, because every structural organization faces today its overtaking by the global systemic functioning. The reign of the Law is much more than that, it is the canal for the social and economic development, it is the juridical pedestal of democracy, it is the substantiality of the democratic policy, it is a protection of the citizen, it is the regulation of the disorder carrier of inequalities, it is written in the walk of History.

Thus, let’s not blame the reign of the Law for the infrastructural applications which it demands. And let neither the bad omen put the discredit on it. Because the reign of the Law is individual and collective, it is societal and political, theoretical and practical. If by its reign the Law is not omniscient, its ubiquity is a chance. It doesn’t respond to the Moral –let to each person– but to the Ethic. It is as a proof of democracy as an indicator of its state. It contents its own guarantee. So we have to enjoy it, but also to consolidate this fantastic collective construction, to extend its application area, technically and geographically within the continent, and to plead for its principle’s extension outside its European birthplace.

Julien THERON – Novembre 2005