1. Error in national EU law
The idea of constructing a bridge across the strait of Storebælt (Great Belt), the body of water separating the two largest islands of Denmark – Sjælland and Fyn – dates back at least to the mid-1800s,Footnote 1 but it was not until 1986 that the Danish parliament finally decided to initiate the project. The general conditions of the tender material included a clause routinely used in Danish state construction projects, stating that ‘[t]he contractor is obliged to use Danish materials and goods, Danish labour and equipment to the greatest possible extent’.Footnote 2 The clause was a political signal – a way to ‘hoist the Dannebrog’Footnote 3 – and it was considered by the involved Danish jurists to be legal under EC law since it was never meant to be enforced. The Commission had a different opinion and initiated infringement proceedings in the spring and summer of 1989, aiming for interim measures to stop the construction just as it was about to start. The Danish government avoided this by striking a lunchbreak deal during the court hearings in Luxembourg, promising to pay damages to the losing contractors, then losing the substantial part of the treaty infringement case.Footnote 4 The embarrassment of making such a banal mistake was felt deeply among the Danish jurists. How could this have happened?
Paradigmatic scholarship of EU law would consider this episode, which I will discuss in more detail in Section 4, as an error in the application of EU law on the part of the jurists who wrote the tender materials and who defended its content even after infringement proceedings were initiated against Denmark. Much literature has been devoted to studying deliberate acts of defiance against EU law – for example, in the form of pushback and backlashFootnote 5 – but those are situations different from what is the topic of this Article. My argument does not address cases such as the judgement of the Danish Supreme Court in Ajos, where it openly defied a preliminary ruling from the CJEU.Footnote 6 Rather, I am concerned with cases in which the national jurists applying EU law have a clear subjective orientation to apply it in accordance with the dominant principles of interpretation, yet do not do so. These cases can be colourful and blatant, like the one about the bridge over Storebælt, or they can be more trivial in both content and reception.
By designating them as mistakes or errors, scholarship classifies cases like this as deviations from the natural state of affairs. This error-paradigm has its social basis in the transnational European legal field. Here, not only scholars but also practitioners of various kinds (and people who are both) benefit from the value it holds to speak EU law authoritatively and continually reproduce the dogma of EU law’s primacy over national law. The ideas about EU law produced and reproduced in this field have acquired over time what I call ontological primacy, in that the ‘European’ version of EU law is correct and meaningful, whereas the ‘national’ version is abnormal and something that needs to be explained as such.
By means of a conscious rupture with the ontological primacy of EU law, I suggest that we can develop more satisfying and richer understandings of the actions taken by those who appear to misapply EU law. In this Article, I draw on a concept from the Bourdieusian sociology of culture – allodoxia – to ascribe meaning to the errors otherwise perceived as deprived of meaning. I argue that a specific type of tension between the habitual dispositions of national jurists and the development of symbolic dominance of EU law can result in what appears as error, yet is in fact meaningful social action. Tied to specific historical circumstances, allodoxia does not provide a catch-all explanation for all ‘erroneous’ application of EU law. It does, however, provide an analytical vocabulary that does not rest on the premise of the ontological primacy of EU law.
In the next section, I will present in more detail the challenges posed by the general inability of EU law scholars to recognise the ontological primacy and our own role in its reproduction (Section 2). Then, I will develop allodoxia as a concept, drawing on its origins outside legal scholarship and showing how it can be transplanted thereto (Section 3). Next, I will demonstrate how I think the application of allodoxia to the case of the bridge over Storebælt can be fruitful and address some of the challenges outlined here in the introduction (Section 4). Finally, I seek to generalise the argument of the Article and respond to a natural objection against its central argument (Section 5).
2. Ontological primacy
As a parallel to the primacy that EU law holds over national law, we can think that EU law holds ontological primacy. By this, I mean that our imagination of EU law is restricted to a space whose outer boundaries are delimited by EU law. Ontological primacy has the concrete implication that certain fundamental tenets of the content and sources doctrine of EU law are perceived by scholarship as given, and that opinions in line with these tenets are not recognised as opinions, but as facts. Conflicting opinions of EU law, on the other hand, are reduced to just that: opinions. This fails to reckon with the fact that the dogmas of EU law are products of historical processes.
This ontological primacy of EU law is a function of the symbolic domination asserted by actors in the transnational European legal field. It is not a subjective opinion that one can step in and out of. Recent socio-historical research on the genesis and reproduction of a transnational European legal field shows how the currently dominant ideas of what EU law is and how it works have been created under specific circumstances.Footnote 7 That scholarship on EU law was an integral part of this historical process is by now uncontroversial,Footnote 8 just as scholarship produced in this field continually plays a role in the reproduction of EU law. There is a parallel here between the history of EU law and that of the modern state as they are both ‘to a large extent the product of theorists’.Footnote 9 To participate in this production, any participant in the field must accept the doxa of EU law’s teleology and fundamental tenets. Mair makes a related point arguing that
[t]he prioritisation (or glorification?) of coherence and cohesion is often premised on a single epistemology and unique regime of knowledge. It is grounded in a particular normative perspective of the European legal order that is believed to allow for the extraction of the most authoritative, true, and irrefutable interpretation and hence meaning of the law or legal decision.Footnote 10
Not only have scholars of EU law played an important role in developing, legitimising and reproducing the central dogmas of EU law, but they have also consistently been a part of the European legal field from its genesis to the present, having therefore benefited from the general amenities and prestige associated with an international career, for example, through EU exchange programs or research grants. While these actors are of course also embedded in national social structures,Footnote 11 they have usually received a larger proportion of their training and maintain larger networks across Nation–State borders than those who are mostly invested in national law.
Hence, most literature on EU law has this transnational, placeless perspective on the national reception of EU law where EU law has a doctrinal existence a priori to national law, which must either comply with EU law or be deemed erroneous. A different perspective might, and often will, prevail in national scholarship, yet this is rarely reflected in the European (ie, mostly anglophone) literature. When one is trained in internationalised research environments, has had positions at various prestigious Western European research institutions, publishes mostly in English despite having another native language,Footnote 12 and so on, truly taking the perspective of those who are invested in national law does not come naturally given one’s own habitual dispositions.
That the dominant perception of the formal legal order forms the outer boundary of imagination in legal scholarship is not something particular to EU law; the same will hold true for national legal orders and national legal scholarship. What is special about EU law is the aspect of transnational symbolic domination, as understanding the production of law as it crosses field boundaries requires a different way of thinking compared to mostly national legal orders. The intertwinement of different legal orders with different symbolic orders complicates the picture compared to the typical national legal field.
The specific mechanism of the domination asserted by the transnational European legal field over actors in the national legal fields is an understudied topic. Many jurists who apply EU law in their daily lives do not have any stakes in this transnational European legal field, yet they accept the authority of its doctrinal dogmas as they are imported and integrated into the social structure of the national legal fields. Nonetheless, since most applications of post-Bourdieusian sociology of EU law have focused on the European legal field, the national contexts have received comparatively less attention from this theoretical perspective. Conversely, scholarship on the reception of EU law within national legal orders rarely tackles the problem of symbolic domination. Rather, it takes this domination for granted.
Two aspects of ontological primacy are of importance to the overall argument I present in this Article. The first aspect is that among scholars of EU law (in the broadest sense, also including practitioners of all sorts who contribute to the academic production of EU law) there is a dominant perception of EU law as the natural starting point and other legal orders to be ontologically subordinated. The result is that the action of misapplying EU law qua misapplication is dependent on the existence of EU law, particularly a very specific interpretation of EU law. If the latter could not be established, its mistaken application could not exist as a mistake.Footnote 13 If scholarship does not manage to break with this dominant perception and its teleological implications, it severely limits the type of questions that can be asked about the functioning of EU law.
The second aspect is the extent to which the transnational production of this perception manages to establish symbolic dominance over national legal actors. The ideas produced during the first aspect exert a form of theory effect by appearing as purely descriptive language while in reality predicating and classifying the social world in a way that is opaque to the actors themselves.Footnote 14 Hence, the actors who import EU law and its logics into the Member States ‘produce the effects which they appear to describe’.Footnote 15 The extent and quality of this effect are historically contingent and depend at least as much on the social structures of the national legal fields of each Member State as they do on EU law.
The aim of introducing allodoxia is to provide an analytical framework for unpacking the social tension between the existing logics and social hierarchies of national law confronted with the imposition of EU law, and to understand the release of this tension as a specific social and historical mechanism. It is one possible way of breaking with the presumption that EU law will have the effect within national legal orders that is usually expected, a presumption that helps turn the teleology of EU law into reality. As I will argue below, allodoxia provides a framework to insist on the ontological parity between European and national legal dogmas, while at the same time taking seriously the force by which the former seeks to establish a symbolic dominance over the latter. Before introducing the notion of allodoxia more systematically and its ability to present an alternative perspective to the error-paradigm, I will first add a few comments on terminological issues associated with the approach I present.
This notion that EU law is one thing, as pointed out by Mair, that it is a coherent totality, enforces harsh terminological restrictions on anyone seeking to imagine a world where EU law is not one single, given entity. In the first pages of this Article, I have taken great pains to avoid a terminology which reproduces the same error-paradigm that I am trying to escape, something that has led to more than one uneasy formulation. To speak of the version of EU law that is produced in the European legal field in opposition to another version of EU law practiced by certain national jurists is exceedingly difficult to do without inadvertently using phrases that label the former as correct EU law and the latter as mistaken. This is an ingrained reflex for anyone who deals with EU law on a regular basis and has invested in this European form of legal capital. Speaking properly outside this orthodoxy demands abandoning its terminological framework.
Rather than upheaving a specific historical product to the universal by talking about EU law as such, we should think of EU law produced in the European legal field as just one specific version of EU law, rudimentarily termed European EU law, whereas EU law produced in a given national legal field can be termed national EU law. The term European EU law is of course in itself flawed, as it implies an all-encompassing unity across the continent and therefore makes invisible that (a) not the entire continent is part of the EU,Footnote 16 and (b) not all parts of the EU are equally represented in the production of European EU law, since access is mediated through the most prestigious western European universities, fluency in certain languages, and other unequally distributed resources. This term also overestimates the homogeneity of European EU law. However, for the purposes of this Article, I ask the reader to allow a certain simplification and to focus on doctrine that is clearly accepted as dominant. In fact, the same objection should be raised against a terminology that implies that EU law is applied and thought of uniformly within a Member State.Footnote 17
Despite these objections, I believe that at least posing this terminological problem, even in its underdeveloped form, is necessary to develop perspectives that allow ontological parity between different understandings of what ‘the Law’ is, and therefore also what constitutes misapplication of the said law. This involves turning the logic around and insisting on construing the alleged mistake as meaningful social action. The purpose of this rupture is not to deny the normative element of EU law scholarship, or to propose any alternative normative argument of what the law ought to be. The purpose is to make visible how normativity is presented as fact in this specific problem of application of EU law within Member States. In the following section, I will argue that the introduction of allodoxia can help unpack how this mechanism works under specific social and historical circumstances.
3. Allodoxia
The term allodoxia originates from Plato and is usually translated as false belief.Footnote 18 Bourdieu adopted the term but put it into the context of his sociology, where ‘mixed teachings’ is the more usual translation and links better to the rest of the conceptual vocabulary he developed. Leaving Plato aside for the purposes of this article, I will first argue, starting from apost-Bourdieusian conceptual vocabular, that the advent of EU law to a national legal field can be imagined as a principle of social differentiation between the old national and the new European forms of legal capital. Second, I will introduce allodoxia to conceptualise the misreading of social space that may occur when the valuation of existing capital possessions changes. Third, I will remount allodoxia from the sociology of cultural taste to the sociology of EU law within Member States, arguing that this concept can help explain why national jurists commit ‘mistakes’ when their possessions of legal capital and their habitual dispositions are made obsolete by structural changes.
A. A structuralist approach to legal error
To understand why a certain doctrinal position prevails or not, one ought to understand the social structure producing that very doctrine.Footnote 19 We can think of the production of legal doctrine as prophecy – in the words of Bourdieu as ‘the essentially political power to bring into being what is declared to exist. It is a struggle for the imposition of an accredited and universally recognised classification’.Footnote 20 In the legal field, the power to bring into being is acquired by accumulating and mobilising legal capital,Footnote 21 ie, socially acknowledged resources recognised as skill.Footnote 22 The ability to pronounce an enforceable interpretation of the law rests largely on the ability to mobilise authoritative legal sources in a way that is generally accepted as following ‘correct’ patterns of interpretation (which is why we should think of the ‘talented’ jurist as a well-socialised jurist). As ‘the purpose of prophetic discourse is to relieve the believers completely of any anxiety about the meaning of the world’,Footnote 23 the force of the legal prophecy depends on the chance that it will be enforced, ie, that it is backed by the necessary amounts of legal capital.Footnote 24
When studying EU law within Member States, I suggest we differentiate between national and European legal capital.Footnote 25 The post-Bourdieusian literature on European law has, in broad terms, relied on a construction of legal capital as a single principle of differentiation, while adding nuance through the opposition between the autonomous and heteronomous poles of the field. Adding an additional principle of differentiation allows us to better conceptualise the social tension between new and old skills. The relative value of these two forms of capital is not fixed but subject to change. Not only can actors possessing one form employ different strategies to valorise their possessions, for example by drawing on external sources of legitimacyFootnote 26 or by producing new types of legal scholarship.Footnote 27 In addition, events external to the field may impose sudden or incremental changes on its logics.Footnote 28 In national European law, major institutional or attitude changes in the EU might cause exactly this type of change.Footnote 29 As I will return to in Section 4, the political and economic premises underlying the Danish accession to the EC played an important role in shaping the structure of Danish European law and the scope of imagination of the Danish jurists.
As the relative value of national and European legal capital changes, the ability of each actor to enforce a certain vision of the law will change based on their possessions of the two forms of capital. We can think of this relative change as a change of structure, in the sense that actors will have to orient themselves to new, objective social realities when deciding what opinion of the law to take. The structure limits the number of doctrinal positions that are within the scope of possible action: many doctrinal answers to a given question could be accepted as correct if supported by sufficient mobilisation of capital, while other positions will be excluded as they fail to align with the social order. Choosing between competing prophecies of the law, actors will be directed by their habitual dispositions when reading the social space and guessing which position is most likely to be accepted as correct law.
Hence, certain legal opinions will seem more natural based on an actor’s prior social trajectory and corresponding habitual dispositions. This is because, as Lizardo puts it, ‘once a competence or a disposition is acquired … it carries “necessity” because it becomes the primary (or most profitable) way that agents know how to act when confronted with a given situation’.Footnote 30 Returning to the structural opposition between the national and the European, those actors who have been moulded within the national legal system and whose acquired competences have proven to be profitable investments in legal authority will expect continuing profitability from their ingrained dispositions. In this sense, indeed, ‘history is structure and structure is history’.Footnote 31
Whereas international courts rest on new and more fragile social foundations, rendering them susceptible to the ‘idiosyncrasies’Footnote 32 of individuals, the opposite will be true for those national legal fields which, in many cases at least, have been entangled with the history of their respective Nation States for centuries. In addition to the embodiment of structure in the habitus, modes of social reproduction and even physical objects will contribute to aligning the actors to established practices. This history can materialise in doctrines inherited through generations of textbooks or in repeated statements about the character of the legal culture, but just as well in more mundane entities such as standard contracts and paradigms for administrative decisions and judgements. While we should not overemphasise the stability of those national legal fields, it appears reasonable to expect that a certain inertia of established practices might inhibit the actors’ ability to properly recognise change as they are bound by their past investments. Reinforced by the law’s appeal to universality through consistency, ie, the accumulation of historical doctrine, this structure that is ‘crystalized history’Footnote 33 masquerading as legal doctrine has a prophetic effect of its own by directing the actions of present actors.
This ingrained history is disturbed when events external to the legal field – such as an accession to the EC/EU – introduce a new principle of differentiation and therefore radically alter the structure that is created by the distribution and valuation of legal capital. The changes might come unevenly in time and space, but when some actors recognise and act on the newly created potential, this is likely to accelerate the pace of structural change. During those times of rapid change, any actor in the legal field will be extra pressed to adapt by reconfiguring their capital possessions and relearning habitual dispositions in order to navigate a transformed social space with new rules for what the law is and what it can be. Old habitual dispositions will be more prone to fundamentally misread the social space and choose actions that do not align with the current structure.
B. Misreading structural change
How can the concept of allodoxia help to understand action in a field that is undergoing such a structural change? In Distinction, Bourdieu uses allodoxia as a framework to understand the encounter between the petty bourgeoisie’s effort to perceive and consume culture in a way that is recognised by the cultural elite as correct. In short summary, Bourdieu argues that this reverence for culture ‘leads the petite bourgeois to take light opera for “serious music”, popularization for science, an “imitation” for the genuine article’.Footnote 34 This reverence ‘exposes the petit bourgeois to cultural allodoxia, that is, all the mistaken identifications and false recognitions which betray the gap between acknowledgement and knowledge’.Footnote 35 To be on the safe side, they tend to ‘bow … to everything’Footnote 36 in an effort to not miss out, and it is this over-acknowledgement that exposes their lack of knowledge. This gap between acknowledgement and knowledge that Bourdieu speaks of is the lack of familiarity with fine culture that comes with the right upbringing, education, social networks, professional positions, a familiarity which the petit bourgeois do not possess. Because many post-Bourdieusian applications of allodoxia focus on this reverence of the petit bourgeois, the concept appears to be directed mostly towards this socio-spatial dynamic.Footnote 37
The real relevance of allodoxia, however, lies in its temporal, and therefore historical, aspect. This is not only better developed in Bourdieu’s own writings but also a more fruitful way of thinking. This is because linking allodoxia to time inevitably connects it with changes in social structure, making it better suited to explain the dynamics of changing legal relations characteristic for the process (unfortunately) referred to as ‘European legal integration’.Footnote 38
Lizardo points to this temporal aspect of allodoxia as Bourdieu uses it in Distinction, that allodoxia is ‘the propensity of agents to put into play at any given moment strategies that were appropriate to an earlier state of the field but that in the current context appear as out of place and are revealed to be dysfunctional’.Footnote 39 Upward social mobility (or just preserving existing social status) is based on one’s ability to invest in the right things, ie, not the symbols that were important yesterday, but those that will remain so tomorrow. This aspect is also emphasised by Bourdieu in State Nobility,Footnote 40 where he discusses the changing values of diplomas from different French elite universities:
The categories of perception that agents apply to the social world are the product of a prior state of this world. When structures are modified, even slightly, the structural hysteresis of the categories of perception and appreciation gives rise to diverse forms of allodoxia. Classificatory schemata originating in the common perception of a former state of the educational system, such as the distinction between humanities or science students or between the grandes écoles and the universities, lead to representations of present reality that do not account for new realities.Footnote 41
We see here that such a temporal perspective makes allodoxia not only descriptive of an experience, but a concept that can explain this experience by indicating its origin – a change in classificatory schemata that the actor fails to recognise. Bourdieu here points out that ‘this structural delay is all the greater when the agents are further removed … from the appropriate information that becomes particularly crucial in periods of rapid change’.Footnote 42 Access to resources will privilege some and disadvantage others. This differentiation might be linked to the existing logics of a field, favouring dominant positions which will be better equipped to deal with changes, but not necessarily.
When structural change originates in the increasing influence of logics from other fields, different mechanisms may set in, so that actors who used to be on the periphery can suddenly mobilise new resources. In On Television and Journalism, the semantics of allodoxia as mixed teachings becomes clearer in this view. Here, Bourdieu argues that logics from the field of journalism influence cultural production by enforcing market logics into the otherwise more autonomous cultural field. This linkage is facilitated by intermediaries who move between the two fields and compel the producers of culture to either abide by new rules or be pushed into periphery by enacting the economic logic of sales numbers.Footnote 43 In the context of journalistic influence on the logics of academic production, Hodge et al argue a similar point that
… the influence of the journalistic field on academia … engenders new forms of cultural production (academics begin to produce a kind of journalism alongside traditional types of output) and new ways of evaluating academic work (research needs to have ‘impact’ as well as or even instead of scientific discovery and critical insight).Footnote 44
This type of change is distinct in that it is driven by something other than the internal logics of the field in question. For this reason, it might happen faster and less predictably. More importantly, it does not necessarily favour those already on top of the hierarchy. To continue in the theme from Hodge et al, the introduction of expectations for fast knowledge and easily digestible answers into the academic field will shift power to those adept at speaking this language and manoeuvre themselves well in the spotlight of the media. The actors who are acknowledged by their peers as the most capable scientists will often fall short of this, because their investments in what is valued at the autonomous pole of the field – such as esoteric language, certain types of networks, deep expertise – is not valued at the heteronomous pole. These new values gain legitimacy by the introduction of journalistic logics. Those most deeply invested in and profiting from the existing logics will therefore not necessarily be the first or the best to adapt to new circumstances. A similar dynamic can be observed when EU law is introduced into a national legal field.
C. Applying allodoxia to the sociology of EU law
We can detach allodoxia from its origins and apply it to the sociology of EU law to understand why some jurists sometimes make clearly mistaken classifications of the law. A fundamental lack of ability to decode the boundaries and rules of legal classification can lead to allodoxia. When an actor’s habitual dispositions and possessions of capital are tied down to a former state of the structure of the field, it will hamper their ability to see how the scope of possible legal arguments has changed. This will lead one to take up objectively hopeless legal positions that cannot be enforced as prophecies.
Just as in the case of journalistic intrusion into the academic or cultural fields, Caserta and Madsen have pointed out how changes outside the legal field can influence the development of legal doctrine in ways that cannot be understood if one only looks at the legal field itself.Footnote 45 Major political events and changes in other fields of power can alter the space of possible action in a legal field by either closing down older avenues of action or opening up new ones. Accession to the European Union is one such event that can drastically alter the logics of the national legal field by disrupting the existing classificatory schemata and introducing new ones. Such structural change of logics has a range of effects, but I will focus on just two central aspects of legal classification that can be altered: the acknowledged sources doctrine and the division between law and politics.
Accession to the EU introduces new sources of law as well as new interpretative dogmas that can, in principle, now be applied with the political backing of the new Member State (although, as has been seen in practice, this enforcement does not always happen with uncompromising rigour). New legal sources that do not (always) exist in national orders, or sources that look well-known but are in fact different will make knowledge of national sources doctrine less valuable and knowledge of its European counterpart more valuable. For example, the Advocate General is a strange construct for a Scandinavian jurist, and interpretation of a regulation is different from interpretation of national legislation. Investments in knowledge of these new sources – in European legal capital – open new avenues of social action but can only be used to full effect in the national space if they are also generally acknowledged as relevant and if prophecies of the legal future based on these new sources are in fact enforceable. To the extent that the new sources become increasingly acknowledged, failure to apply them or apply them correctly will lead one to speak out of order, not only likely providing wrong legal answers but also to provide the wrong legal reasoning.
Perhaps more pertinent to the example case I will discuss in Section 4, accession to the EU also changes the logic by which a question can be classified as either legal or political. As Kantorowicz argues, the power of the jurists is based on a reciprocal deal with the king – in return for legitimising the latter’s power, the former will receive a monopoly over legal matters and the king will accept being bound by their power within this domain: ‘The king is bound to the Law that makes him King, but the Law that made him king enhances also his royal power and bestows upon the ruler extraordinary rights … ’Footnote 46 This division between the legal and the political is mediated on an everyday basis by, for example, judges in constitutional courts or in supreme courts acting as such, but also by more profane actors in the central administration and, in a certain sense, all jurists who in their daily work participate in the reproduction of this division.
This division is challenged by accession to the EU. The Commission has its own way of balancing its perceived guardianship of the treaties with political agendas. Similarly, the CJEU aims to uphold the law as law while respecting its borders towards other EU institutions. The introduction of institutions like these – and countless others – radically alters the scope of action for those who seek to manoeuvre in a specific case, as it creates new options for some and vulnerabilities for others. Navigating this changed space without unwillingly transgressing the otherwise well-known borders between law and politics requires that one understand the workings of these institutions to engage with them or shield oneself from them.
Navigating this new social space between national and European law requires a critical mass of both European and national legal capital. It is not enough to overinvest only in the new form. Those who manage a diversified capital portfolio are the actors who can successfully double-act between the two logics. Those with mostly European legal capital will, at least for a time, be pushed to the periphery – and might themselves believe that they are simply ahead of their time, the traditional explanation of the self-perceived avant-garde for its lack of recognition. Those with mostly national legal capital might for some time preserve their pre-existing positions of power at the centre of the field, but will be increasingly exposed to allodoxia, to the realisation that their way of arguing about the law, their prophecies, cannot be enforced.
We see that diversified investments pay off in Pavone’s The Ghostwriters, although he does not make this point explicitly. Pavone documents how entrepreneurial euro-lawyers orchestrated many of the important landmark cases of the ECJ. They made this case law possible by ghost-writing the preliminary references as the judges usually lacked the skill and the time. But for the lawyers, knowing how to write such complex texts – a typical example of European legal capital – was not enough. They also needed a detailed understanding of the national legal field to land the case at the correct national court where judges would be friendly to a reference and where no unfortunate procedural surprises would occur.Footnote 47
Failure to adjust to new structural circumstances will give rise to forms of allodoxia. When actors do not fully recognise how the outer bounds of possible legal argument have changed – for instance, by considering a matter as one of political preference when it is in fact legally regulated – they will fail to engage in the same conversation as other jurists do. Such a failure to adjust attitudes to doctrinal law can persist for a while as reorientation is prevented by the inertia of established practices. The heritage of history that the field carries with it can delay such changes in dogma that the structural change would otherwise prescribe. The dead – in the form of templates, textbooks, and habits – will continue to ‘fetch the living’.Footnote 48 The more well-established a doctrine is, the greater its inertia. Some of the fundamental dogmas of national law will carry heavy weight in this regard, intimately enshrined in the patterns of reproduction of the national legal field and resistant to any outside challenges or appeals for change. Thus, some practices of the field might continue business as usual while the introduction of EU law has limited effect.
Structural change is not bound to create allodoxia. In many cases, national actors do adjust their doctrinal attitude to what is within the new scope of possible legal action. Such an adjustment depends on the ability to read the new social space correctly, an ability that will often stem from timely investment in European legal capital. Where this adjustment does not happen, a tension builds between the doctrine practiced by national jurists and their ability to enforce it – to make it a working prophecy – when confronted with a structure that offers no space for this view of the law. This tension can persist and even increase for quite some time if no real challenge materialises, as I will illustrate with the Storebælt case below. As the distance increases, its sudden release will appear to be blatant error rather than just a legitimate disagreement about the law.
This sudden release, creating a situation where the prophecies given are exposed as powerless, will not be a random occurrence of human error. Rather, we should think of it as the contingent result of structural tension created as dominant groups of national jurists do not adjust to shifting circumstances affecting the logics of the field from the outside. Having failed to adjust along the way, these national jurists will be unable to put up the same controlled retreat as in more everyday cases but will be forced to an unconditional surrender since insisting on their previous doctrine will be manifestly unaligned with the scope of possible interpretation of the law.
4. The Storebælt error
In this section, I illustrate with a short case study how the approach outlined above can be applied in practice. After giving a short contextual overview of the structure of Danish legal field at the end of the 1980s and a sketch of the dispositions of one of the lawyers who defended the buy-Danish clause, I will recount the main events of the Storebælt case. In the end, I will discuss how we can conceive of the ‘error’ of the buy-Danish clause as a meaningful product of the social structure and a specific perception of the division between law and politics.
A. Danish and European law in Denmark in the 1980s
Denmark, as Nation State, has a long and comparatively uninterrupted history. In its modern history, a distinct group of jurists has played an integral part in constituting and reproducing the Danish state and has developed well-established patterns of social reproduction and division of labour.Footnote 49 Historically, Danish jurists have been comparatively more closely connected to the state apparatus than what is the case for the legal profession in many other states where the legal profession has stronger ties to the civil society.Footnote 50 Not only has the Danish law degree mostly been preparation for work as civil servant. Also, the most prestigious positions in the Danish legal field have been top jobs in the central administration, the Supreme Court, or professorial positions within topics of national law.
When Denmark acceded to the EC in 1973, this national legal elite largely viewed it as a community of trade with limited potential for dynamic legal development and no ideological foundation.Footnote 51 Contrary to the founding members, Denmark’s accession was motivated only by the economic interests, not by post-war Europeanism.Footnote 52 While it was not denied that membership of the EC created real obligations for the Danish state vis-á-vis the other Member States and the EC, the idea that EC law and EC institutions could penetrate the national legal order and create rights and obligations within the borders of Denmark was a much more abstract and vague notion.
In the decades after the accession, this domesticated form of EC law prevailed and was reproduced by a small circle within the administrative legal elite in the Ministry of Justice and the Ministry of Foreign Affairs, a group that was relatively successful in controlling the preliminary references made by the Danish courts and the overall volume of EC law-related case law.Footnote 53 With this elite monopolising practical knowledge of EC law while excluding other jurists (also from the resort ministries), EC law spread neither wide nor deep in the Danish legal field, and it did not become a ‘living’ instrument of law during the 1970s and 1980s. Hence, this group had largely been confirming themselves in the idea that EC law conformity was managed by the legislator and executive as a question of foreign policy. It was not a ‘new legal order’ penetrating the social structure of Danish national law.
Meanwhile, the quantum and force of mobilisable community law increased, partly due to the ECJ’s expansive case law in reaction to the stalling tempo of legislation during the 1970s and up to the Single European Act (SEA), partly due to the enactment of the SEA itself.Footnote 54 On top of this general picture, the realisation of the single market had also been interpreted to include the market for public contracts, resulting in a number of new legislative acts as well as increased attention from the Commission.Footnote 55 This development increased the tension between the conception of European law dominant in the EC institutions and that held by the Danish legal elite. The Danish picture of EC law’s nature had always been at odds with the picture produced in the European legal field but as the tension increased, the likelihood of its sudden release increased correspondingly.
It was in this context that Denmark launched one of its largest single infrastructure projects to date: the bridge over Storebælt. The project had been shelved due to financial problems following the oil crisis, but it was revived in the 1980s and approved by a parliamentary act in 1986.Footnote 56 It was realised following a political compromise between the conservative government and the social democratic opposition. The government wanted Danish contractors to gain experience with large-scale projects to increase competitiveness vis-à-vis foreign companies, while the Social Democrats were interested in creating jobs for Danish voters.Footnote 57
B. The national habitus
A state-owned limited liability company, A/S Storebæltsforbindelsen, was established to facilitate the process, and a working group was created to write the tender documents. Due to this structure, A/S Storebæltsforbindelsen was not directly managed by the governmental bureaucracy on a day-to-day basis. Instead, it had a board of directors which hired its own legal counsel to guide the tender process among other tasks. The working group hired Kristian Mogensen (1926–2003), a leading partner in the prestigious law office Hjejle, Gersted & Mogensen. A short biographical overview should suffice to show how Kristian Mogensen was endowed in most of the important indicators of national legal capital.
He was an important behind-the-scenes figure in the Conservative People’s PartyFootnote 58 (which held governmental power during the Storebælt case) and a respected landsretssagfører (high court barristerFootnote 59 ) – a title he continued to use even after its official discontinuation in 1958, a sign of adherence to tradition. Although he was the author of a number of journal articles and later a book,Footnote 60 he was mostly a very active lawyer in high-profile cases, litigating numerous cases reported in the generalist gazette Ugeskrift for Retsvæsen (Weekly Law Report).
Kristian Mogensen counselled a range of notabilities, including shipping company A. P. Møller Gruppen Footnote 61 and the Danish royal family.Footnote 62 For many years, he was a leading member of the Danish section of the Nordic Jurist Meetings, another typical indicator of national legal capital.Footnote 63 Pointing further in the direction of the national field of power, he was a reserve lieutenant colonel of the Royal Life GuardsFootnote 64 and decorated by the queen as Kommandør af Dannebrog (Commander of Dannebrog). He was closely connected both personally and professionally to the power elite, and represented not only some very powerful clients, but clients with strong ties to the Danish governmental structure.Footnote 65
Again, the political compromise to finance the bridge forged by a government led by Mogensen’s own party had the explicit purpose of strengthening the Danish economy. Not only was Mogensen a natural choice as an acknowledged lawyer, but he was also well-connected to the political machinery and hence well-suited to tackle the task of abiding by the law while making political wishes come true. Since A/S Storebæltsforbindelsen had only a few jurists in-house (most notably executive secretary Henrik Brøndum, a former civil servant in the Ministry of Foreign AffairsFootnote 66 ), Mogensen’s ability to draw on the capacity of the major law office in which he was a partner was cited as a reason to hire him as retained counsel.Footnote 67
Why is this biographical introduction to Kristian Mogensen necessary? He was a national lawyer and had all his legal capital invested in a single portfolio. He personified that extreme position in the field, far removed from international and European law, deeply embedded in national law and with close social ties to the national legal and political elite. Below, we will see him expressing the doctrinal equivalent of his objective position in the field. But instead of thinking that he made an error when he counselled A/S Storebæltsforbindelsen, we need to see here that he got it right: the advice was a perfect fit with the structures within which he imagined he was acting.
C. The buy-Danish clause and the Western Bridge tender
Kristian Mogensen was hired as the legal advisor for A/S Storebæltsforbindelsen but was not directly involved in writing the tender documents. To distribute the workload, a partner in his office, Karsten Havkrog Pedersen, participated in the working group.Footnote 68 Copying and pasting from older standard contracts used by the Danish state, the working group developed general conditions containing the later-famous buy-Danish clause, stating that ‘[t]he contractor is obliged to use Danish materials and goods, Danish labour, and equipment to the greatest possible extent’.Footnote 69 The clause was borrowed from the general conditions of DONG, the state-owned energy company, where it had been in use since at least 1983.Footnote 70
The working group was well aware that a buy-Danish clause would be illegal if enforced or intended for enforcement. To allow its inclusion as a political signal, they simply removed its executory part.Footnote 71 This understanding of the relationship between enforceable law and political signals is a core part of the problems that would later arise. Apart from this, no one seems to have taken particular notice of the odd-looking clause as the tender documents moved upwards in the chain of approval from the working group to the management and later the board of A/S Storebæltsforbindelsen.
In the winter and early spring of 1989, the pre-qualified consortia submitted their bids. A/S Storebæltsforbindelsen pursued negotiations with one – the European Storebælt Group (ESG) – aiming to sign the contract in early June. Bouygues Group, a French contractor from a different consortium, sought legal measures to stay in the race – though not under EC law. Bouygues’ Danish lawyer, Claus Kaare Pedersen, wrote to Monopoltilsynet (The Monopolies and Mergers Commission), arguing that some procedural technicalities under Danish tender law had been breached, though he made no mention of the clause.Footnote 72 Meetings with Monopoltilsynet and efforts to solve the issue diplomatically by involving the French ambassador were unsuccessful.
It was only with the Commission’s involvement that the case was transformed into one about EC law. The owner and CEO of the Bouygues Group, Francis Bouygues, was well-connected to the French political elite and an old friend of Jacques Delors from when the latter had served as minister in Mitterrand’s government. Finding no success with the Danish authorities or through the French ambassador, he wrote to the Commission, sending a copy directly to Delors’ office. At this point, there is still no indication that Bouygues has tried to exploit the buy-Danish clause, complaining only about the technical details of the tender process. However, the Commission took note of the clause, marking an important turning point in the narrative.Footnote 73
In a letter dated 19 May 1989 from the Commission to the Danish representation in the EC, the clause was introduced to the conflict, actualising the potential of EC law. The issue was no longer merely about technical procedures for evaluating different bids for the tender, but about the correct interpretation of EC law. The Commission concluded in the last paragraph of the letter that the clause was ‘contrary to the treaty’.Footnote 74 This did not seem to shake the civil servants in the Ministry of Transport, who found the clause to be in accordance with the one found in DONG’s conditions and therefore unproblematic.Footnote 75 Neither did the letter impress the management of A/S Storebæltsforbindelsen. As Senior Secretary René Rothmann testified to the Court of Inquiry that was later established, ‘it was another effort by a belittled contractor to get back to the negotiation table’.Footnote 76 During a cross-ministerial meeting to discuss the severity of the case, head of office in the Ministry of Transportation F. Reidar Jørgensen similarly took the position that ‘the letter from the EC Commission was a “misunderstanding”, that could be resolved in a meeting with the EC Commission’.Footnote 77
For the civil servants in the Foreign Ministry, who were much more accustomed to dealing with EC law, the direness of the situation appears to have immediately apparent upon seeing the letter.Footnote 78 Should the Commission aim for interim measures to put the project on pause, it could come at a significant cost – in both financial and political terms. To make matters worse, an untimely intervention by the Commission could benefit Danish euro-sceptics just weeks before the 1989 elections to the European Parliament. Hence, the only consideration made by the administrative apparatus concerned ‘how flat one ought to lie down’Footnote 79 so as to minimise subsequent liability without displeasing the Commission.
After initially postponing the signature, A/S Storebæltsforbindelsen then signed the contract with European Storebælt Group while the civil servants were still in dialogue with the Commission. Removing the clause from the final contract was not enough to prevent the Commission from initiating infringement procedures. In a last-minute settlement in Luxembourg, the Danish government avoided interim measures, and the construction project continued as scheduled. The settlement involved a promise to pay damages to Bouygues and other losing contractors in accordance with ‘general principles of Danish law’.Footnote 80 Denmark then lost the treaty infringement case as a fait accompli in 1993,Footnote 81 and A/S Storebæltsforbindelsen paid only small damages in 1996 following litigation in Danish courts.Footnote 82 In practical terms for the construction of the bridge, the case therefore did not have the catastrophic consequences that might have ensued.
D. Classifying law and politics
I remind the reader here that Danish EC law during the first two decades of membership had indeed been Danish, as it was domesticated and monopolised by civil servants in the Ministry of Justice and the Ministry of Foreign Affairs. This early dominance concentrated knowledge of EC law in the hands of a small number of leading civil servants who became gatekeepers for the rest of the central administration and the Danish legal profession as a whole.Footnote 83 This inequality was evident during the dramatic weeks in the spring of 1989 before the contract with ESG was signed, and is key to understanding the stubborn defence of the buy-Danish clause that Kristian Mogensen – and in part Karsten Havkrog Pedersen – mounted.
The most senior civil servants understood the scope of the problem and managed to navigate a difficult situation rather effectively. They would have been used to the balance between serving the political interest of the Danish government and abiding by the law of the EC when transposing directives or litigating infringement cases. The dramatic weeks before the contract was signed with ESG saw the involvement of Jørgen Molde from the Foreign Ministry, regular agent before the ECJ, as well as Karsten Hagel-Sørensen from the Ministry of Justice, head of the cross-ministerial Legal Special Committee for EC Law and one of the first Danish jurists to publish on EC law as early as the 1970s.Footnote 84 They were both experienced civil servants in this exact type of double-game between law and politics.
Some other civil servants did not show the same understanding. One such civil servant was the above-mentioned F. Reidar Jørgensen, head of office in the Ministry of Transportation, who was one of those who defended the clause and received criticism from the Court of Inquiry.Footnote 85 The monopoly of definition exerted by the two central ministries meant that both other civil servants and lawyers were largely inexperienced with the practical application of EC law. Among most lawyers, the idea prevailed that one could approach EC law as if it was Danish law. Essentially, this was a question of navigating the boundary between law and politics.
What did this look like? While Kristian Mogensen took no part in the working group preparing the general conditions, he was the general counsel of A/S Storebæltsforbindelsen and was therefore quickly involved when the conflict with Bouygues started. Following the letter from the Commission of 18 May 1989, Kristian Mogensen attended meetings with a group of civil servants on 12 and 15 June 1989.Footnote 86 During the meeting on 15 June, he argued that A/S Storebæltsforbindelsen should sign with ESG without removing the clause, as removing it would amount to admitting wrongdoing.Footnote 87 In a memo from 16 June, he recommended signing with ESG, arguing that ‘[t]he contract with European Storebælt Group has finally been negotiated and is ready to be signed. Refusing to sign the agreement now requires a special justification to the European Storebælt Group. A reference to the EC Commission’s view of the contested clause in the general conditions is not sufficient’.Footnote 88 In other words: The relationship with ESG was a legal obligation of good faith during negotiations while the letter from the Commission was a political issue that could not override the legal obligation.
Karsten Havkrog Pedersen, who received criticism from the Court of Inquiry for not identifying the potential issues of the clause while counselling the working group, maintained even after the final hearings that there was essentially no legal problem, only a political one. That he defended his actions is not the noteworthy part; it is the way he did it. In a letter to the Court of Inquiry dated 12 March 1991, he referred to the clause as ‘the programmatic statement’, noting that it was the direct result of a political wish expressed in the preparatory works.Footnote 89 He went on to argue that
[t]he assessment of the work, which in 1987 was carried out partly in the working group, partly in the follow-up group, should not be coloured too strongly by the agitation which has subsequently been raised from various sides, e.g. from groups who are dissatisfied with the outcome of the tender regarding the western bridge in 1989.Footnote 90
The positions taken by Kristian Mogensen and Karsten Havkrog Pedersen reveal a misclassification of what was at stake. They both thought that the conflict around the clause was about politics, not seeing that it had turned into one about law. They failed to recognise that under EC law, even the potential risk that a contractor would have been discouraged from participating in the tender or changed their bid to accommodate for the clause could constitute illegal discrimination. For them, the absence of any contractual possibility – or intent – to enforce the clause made it acceptable. It is the same line of thinking we see among the civil servants from the peripheral ministries. The more experienced civil servants from the Ministry of Justice and the Ministry of Foreign Affairs were trained to understand these issues and saw immediately that establishing whether A/S Storebæltsforbindelsen had in fact discriminated during the selection process was immaterial to the assessment made under EC law.
5. Making sense of error
In this section, I will return from the empirical case to the theoretical argument of the Article. Based on the short presentation of the Storebælt case, I will first show how applying allodoxia to the sociology of EU law can be thought in concrete terms, and how it can be used to understand apparent error as the release of structural tension. I will then turn to the relation between meaning and error, and the problems arising when making doctrinal claims across different legal fields with different legal logics. At the end, I will discuss the natural objection that an error remains an error regardless of our ability to explain the cause of the error, and that the argument of the Article is immaterial to legal scholarship in the normative sense.
A. A contingent release of structural tension
In the Storebælt case, a number of factors structured the position taken by lawyers and civil servants such as Kristian Mogensen, Karsten Havkrog Pedersen, and F. Reidar Jørgensen. The fact that an identical clause had been used by DONG for years made the buy-Danish clause in the Storebælt tender a continuation of established legal practices. All were high-profile national jurists, and Kristian Mogensen was at the pinnacle of the national legal hierarchy. Yet for all his national legal capital, he was unable to see that this conflict was defined by the same EC law that was still so alien to him. Jurists like these three simply did not embody the dispositions to recognise the prevalence of European law but mistook the case for politics.
While their dispositions predisposed them to a particular view of the division between law and politics, the structural logics around then were changing.Footnote 91 Not only had Denmark acceded to the EC; the SEA and preparations for the realisation of the Single Market had also increased the Commission’s attention to cases like this. And although the central administration was still largely coloured by the domesticated form of EC law that I have described above, the highest-ranking civil servants had been shaped in their thinking by almost two decades of regular interaction with the EC system. They were used to balancing national politics with European law. The external force of intervening EC institutions and the internal force of the ministries of justice and foreign affairs made framing the issue as political structurally infeasible.
As Lizardo describes allodoxia, these jurists ‘put into play … strategies that were appropriate to an earlier state of the field but that in the current context appear as out of place and are revealed to be dysfunctional’.Footnote 92 The position was not just debatable, as is often the case in law – jurists disagree all the time as part of their daily work. But the position was entirely dysfunctional, unable to participate meaningfully in the same conversation as the dominant actors. The entire situation was misread purely as a matter of political manoeuvre, something that could never align with the clause as a legal issue.
Such occurrences of allodoxia are connected to a particular constellation of changing logics in the legal field that is yet to be fully grasped by all participants. I refrain from calling this a specific phase, as this would imply that it is a natural transition into more proper alignment with EU law. This might have been what happened in Denmark subsequent to the Storebælt caseFootnote 93 but it was not inevitable. Scholarship of EU law is already dense with these teleological and linear understandings of natural improvement. Yet a structural tension that we see in the Storebælt case could in principle be released in any direction, and it would be unwise to presume that it is the jurists who are the least trained in EU law that will always lag behind. Reading subsequent events into the case to regard it as a stepping stone to real EU law would be to miss the point of allodoxia. It is not a notion meant to grasp the transition to more EU law but rather to account for the contingent release of structural tension between different logics competing for domination.
By this contingency, I mean that Storebælt – or any similar case – was never bound to happen. Had not this specific French contractor utilised an old friendship with Jacques Delors to push a complaint which was initially not even about the buy-Danish clause, things might have unfolded quite differently. The outcome was never determined by the circumstances. But the increased tension between the changing logics in the Danish legal field and the long reaction time of many elite actors made it likely that at some point, something like this would happen. We should think of allodoxia as an explanatory framework particularly in periods when there is a rupture in the structure of the field. At such times, some actors may be able to adjust to changing circumstances while others may not.
B. Meaning and error
This structural tension highlights an important issue in the scholarship of EU law in Member States, that of understanding and conceptualising the import and export of law across fields. The advent of a new legal concept is never a clean transplant, as it will be shaped by its new hosts. The meaning of EU law within a Member State is given not only by the meaning ascribed to it transnationally, but also by the dispositions ingrained in the national jurists that are expected to apply EU law.
From the perspective of certain Danish jurists, the buy-Danish clause made perfect sense as a political signal that was never meant to be enforced. It would have made sense in most of the cases they experienced throughout their career. Past experiences condition the actors to not only prefer, but also to expect certain outcomes consistent with their own preferences. In the words of Lizardo, ‘[t]he agent’s relationship to the future is (over)determined by the past via habitus. Thus, choices and tastes come to be adapted to the person’s own unconscious micro-anticipations of what the “likely future” will bring’.Footnote 94 Lizardo develops this perspective further:
Repeated experiences in a given set of conditions ‘train’ the habitus to expect structurally similar objective conditions to be consistently available so that preferences (what I want) come to be driven by unconscious expectations (what I anticipate I will get) – the practical grasp of objective probabilities – of the kinds of objects and experiences that we are likely to encounter in future situations; essentially a massive process of a practice-induced ‘self-fulfilling prophecy’. This is another way in which preferences are the result of practical sense and not the other way around.Footnote 95
The future is not an open space; it is constrained by embodied history. To these Danish jurists, EU law appeared familiar as it took a shape that they were familiar with. From a long career shaping a distinctly national habitus, these actors were predisposed to solving legal problems in a certain way, as well as distinguishing between legal and non-legal problems in a certain way. Their habitual dispositions conditioned them to frame the problem in a certain sense – they perceived it in the way which would be the most profitable to them and fit their existing skillset, in a process where hope and calculation merge. Thinking of this as wrong or an error adds little to our understanding of their actions. But understanding it in light of the habitual dispositions of the actors in question, we can instead see it as the most meaningful social action available to them – independently of what we might ourselves perceive as the correct legal conclusion.
Expecting EU law to take the same form in the minds of national jurists despite different contexts and variations in legal habitus amounts to the creation of false homologies across field boundaries. Vauchez warns against something similar in the introduction to L’Union par le droit, although in the opposite direction. Here, he criticises the type of political science that finds in the EU ‘a parliament that claims to embody a “European people”, a Commission that poses as the “government of Europe” and a council that magnifies the sovereign political will of the high contracting parties that are the States’.Footnote 96 If one is used to locating power in institutions named like this, accustomed after many years of studying Nation States with this type of political structure, one is likely to miss what is special about the EU. That understanding would only come from studying the concrete context without drawing false homologies from well-known categories. As Vauchez goes on:
A victim of this strabismus that makes us seek power where we are accustomed to finding it ‘at the national level,’ that is to say, in ‘political’ institutions, entirely taken up by his desire to assign to European institutions the functions that their national namesakes have historically given themselves, our valiant political scientist would, in doing so, renounce identifying the singularity of the European polity.Footnote 97
The same rule of caution applies the other way around. For the same reason that we cannot understand EU law through the lenses of Nation States, neither can we make sense of national EU law by way of European EU law. We cannot take for granted that EU law means the same for national jurists whose habitus has been shaped by other investments and profits in a field that is structured differently. The same words are more likely to mean something different than the same. Then again, for the same reason but inverted, the transnational EU scholars studying EU law within Member States might be just as conditioned to seeing only the version of EU law which they have so far benefited from investing in, unable to comprehend the national EU law as something else and therefore labelling deviations as errors. Hope and calculation, preference and expectation, merge.
C. Is meaningful error still error?
The reader might object that no matter how much we explain the causes of an erroneous application of law, it is still erroneous. According to this objection, the two things can be true at the same time, and the argument of this Article does nothing to alter the relevance and force of the error-paradigm. Taking a purely axiological perspective on what is correct application of the law, the objection makes sense at face value because the application of law in the Storebælt case so strikingly contradicts the accepted axioms of EU law.
The objection is a well-known one in areas where empirical methods make inroads into legal science. Holtermann and Madsen have developed a typology for the relation between doctrinal and empirical studies of international law as one of toleration, synthesis, or replacement.Footnote 98 They describe toleration as a position which ‘accept[s] the presence and even the legitimacy of empirical studies of (international) law per se … while emphasizing the subordinate or auxiliary character of such studies vis-à-vis the mother discipline which remains doctrinal legal science’.Footnote 99 If we take the objection that explained error is still error as a form of toleration, the epistemological stakes are not very high, as long as one reads the present Article in a reciprocal spirit. Explaining why someone applies the law erroneously does not encroach on the territory of doctrinal law, which retains a monopoly on defining which applications will constitute an error in the first place.
It is, however, questionable whether such an amicable attitude can be upheld. I find that our understanding of the rationality of national legal actors when they commit ‘errors’ in application of EU law is not merely of explanatory interest. When I introduce the somewhat rhetorical concept of ontological primacy in this Article, the aim is to highlight the historical contingency in the establishment of the symbolic dominance of European EU law. This is a contingency that recent historical and sociological research in EU law has helped to uncover. It is also a contingency that is continually unfolding and in which all scholars of EU law are taking part, willingly or not, by stating what the law ought to be or ought not to be. Conducting legal science from a position of ontological parity between different versions of EU law is a necessary (albeit in no way sufficient) step to distance legal scholarship from the programmatic production of law and to better understand how one is positioned as a scholar in this ongoing history.
It is certainly so that European EU law in many cases does prevail and that we can therefore say that it is empirically observable as the dominant perception of EU law. This was evidently what happened in the case of the Storebælt bridge. Yet this type of answer cannot be reached by asking the question of what the correct doctrinal reading of EU law is, it can be reached only by asking which perception of EU law is in fact asserting domination.Footnote 100 The answer might appear to be the same, but is tucked into the epistemological rupture that meaningful error is still error, yet only as an inability to guess correctly what prophecy of the law can be enforced. As scholarship of EU law will necessarily have to deal with the import and export of legal ideas across a multitude of fields, I find this rupture to be at least as important in this context as in other instances of legal science.
Competing interests
The author declares no competing interests.
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