Time, history and legal interpretation 1
| Date | 01 August 2021 |
| DOI | 10.1177/1023263X211039980 |
| Author | Siniša Rodin |
| Published date | 01 August 2021 |
| Subject Matter | Editorial |
Time, history and legal
interpretation
1
Siniša Rodin *
At first glance, the CJEU does not appear to make much use of history in its daily work. History is
debated neither in the courtroom or chambers, and even less so in the cabinets or corridors. When
searched in Eur-lex, word ‘history’yields 245 hits altogether in judgments of the CJEU (Court and
Tribunal combined), mostly in the context of common language such as ‘history of safe food use’,
‘long-standing psychological history’,‘history of illness’, etc. Even the usual suspect ‘legislative
history’appears in no more than 70 judgments, approximately six per year since 2017.
Looking beyond the text, history has a broader meaning. Cambridge Online Dictionary defines
history as ‘(the study of or a record of) past events considered together, especially events of a par-
ticular period, country, or subject’. While the Court certainly does not study history as such, its case
law, collected and accessible, provides for a record of past events that come to be considered
together from time to time when the Court decides on cases. In this broader sense, when relying
on its case law (jurisprudence constante , as it is often called), the Court does consider the
record of past events. The history under its consideration is a history of facts and law as interpreted
and applied by the Court.
I will first suggest that law, just like history, requires a concept of linear time, which is generally
taken for granted. I will proceed by explaining how temporal dimension matters for legal interpret-
ation and propose that, while the concept of law itself requires temporal linearity, legal interpret-
ation can be time-independent.
History is a way in which we construct reality. It is often represented as an arrow of time which
irreversibly flows from earlier to later. This is dictated by entropy, and from there on, by causality.
Entropy, that is, the second law of thermodynamics, teaches us that all possible natural processes are
irreversible. Similarly, causality generates an appearance of one phenomenon necessarily flowing
from another, creating what Robert R. Merton called a functional necessity.
2
1. This is a shorter and re-edited version of my talk ‘The Uses of History at the CJEU’at the European University Institute
webinar ‘EU Legal History’. Views expressed are my own and do not reflect positions of the CJEU.
2. R. Merton, ‘Manifest and Latent Functions’, in R. Merton (ed.), Social Theory and Social Structure (Free Press, 1968).
*Judge, Court of Justice of the European Union, Luxembourg. Opinions expressed in this text are author’s
personal opinions.
Corresponding author:
Siniša Rodin, Court of Justice of the European Union, Luxembourg.
Email: srodin@me.com
Editorial MJ
MJ
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(4) 433–436
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211039980
maastrichtjournal.sagepub.com
To continue reading
Request your trial