The Direction of Legal Thinking

By its own logic, Legal thinking leads to ever larger organization. From the local to the national, from the national to the supranational. The historical counter-movement arises from extra-legal friction and anti-legal obstruction.

(Lady Justice on Old Bailey, London: Lonpicman, CC BY-SA 3.0, via Wikimedia Commons)

The occasion for this is a series of objections that lawyers have raised against the view that a European country could solve its immigration problems on its own at the national level. These objections are purely legal in nature. They have nothing to do with the logistical question of border protection. They are not aimed at the fact that a common European border protection would be more efficient than control at each individual national border. Nor do these objections arise because of international power politics, i.e., that a single European state that deviates from the liberal-Western line in immigration policy would be put under pressure from outside and therefore a European self-assertion through unification would be the basis for combating the migration problem.

Both arguments are raised elsewhere, and both deserve to be examined on their own merits. But that is for another time. The legal objection is in any case a different one. It states that immigration policy has already been Europeanized and therefore a different immigration policy can only be achieved at the European level. Anyone who claims to be able to pursue a national immigration policy is selling populist snake oil, making promises that he can never keep.

There is a superficial criticism of this objection that is wrong, but nevertheless immediately suggests itself and therefore deserves to be addressed: It says that the problem is only legally constructed in the first place. If immigration policy had been Europeanized as a field of jurisdiction, then it could just as easily be brought back to the national level. This would just be a question of the distribution of jurisdictions in the treaties of the European Union. If necessary, one could reclaim it as a sovereign state anyway.

Why this is shortsighted has been shown above all by Gerhard Vierfuß¹, the lawyer who advised Martin Sellner on his remigration concept. The Europeanization of immigration policy should not be imagined as if somewhere in the Treaty of Maastricht or Lisbon it says: “Immigration policy is regulated by the European Union.” On the contrary: What we call the Europeanization of immigration policy is a whole mycelium of different treaty provisions, some of which, like the European Convention on Human Rights or the Geneva Refugee Convention, are outside the actual EU treaties. Then there are the human rights guarantees in the national constitutions themselves. In addition, there is the interlocking of many European migration regulations with intra-European freedom of movement and the common market.

But there is not only this web of substantive law that prevents an end to asylum immigration, but also in procedural law a web of jurisdictions. The most important ones are the European Court of Justice and the European Court of Human Rights. For members of the European Union, European law and decisions of the European Court of Justice are on principle superior to any national law.

There is therefore no simple, precise exit way, no abolition of a specific law, not even a constitutional amendment, which would allow the deportation of asylum seekers. As long as this mycelium of laws, treaties and jurisdictions remains intact, every member state of the EU and even some non-EU countries like Britain will remain obligated to grant every asylum seeker a procedure that in legal practice allows them to stay in the country for an indefinite period. In Germany we would have to withdraw not only from the European Convention on Human Rights, but also from the European Union, and even if some play with this Dexit idea, it would be politically unfeasible solely due to our economic entanglement with other European markets, not to mention the subsequent geopolitical isolation.

As a result, Vierfuß and a whole series of other right-wing lawyers argue for a European solution. For example, they support the Danish-Italian initiative to reform the European Convention on Human Rights. Well, there is nothing to object to the latter proposal. One could at most speak against it if it were to result in a further shift of national jurisdictions to the European level. But at present, it looks in no way like that.

But it is no coincidence that it is the lawyers who think and argue this way. That it is the lawyers who can only imagine a solution to the immigration question at the European level. In the legal debate on mass immigration, the direction of legal thinking becomes apparent. This direction runs from the smaller association to the larger one. Or more precisely: it shifts competencies to the respectively more comprehensive level. One could also say that legal thinking is by its nature against subsidiarity. Most people are probably familiar with the primacy of European law over the national law of the individual states in the European Union. Some criticize this precisely because this primacy was not laid down in any treaty, but was simply declared by the European Court of Justice. However, this is not a coup by the court against the sovereignty of the European nation-states. If it were, then we would not have this fundamental conflict with always the same solution in every kind of federal system. In the Federal Republic of Germany, federal law notoriously breaks state law. The history of the United States is a single textbook example of how, contrary to the best federal intentions, competencies are increasingly centralized. Fundamentally, a common legal space centralizes. Why?

This is because Hans Kelsen’s doctrine, according to which law is to be understood as a system of norms that refer to each other without contradiction², is factually obvious nonsense, but as a fiction it is the basis of the everyday work of every lawyer. The lawyer must pretend as if it where like that. Because if he did not, then two equally justified claims could collide, and thus no judgment would be possible. Of course, even in a Kelsenian system, mutually exclusive claims can exist. This happens in every bankruptcy, since here the sum of the claims of all creditors simply cannot be paid from the bankruptcy estate, otherwise there would be no bankruptcy. But the judge must at least pretend that the law prescribes which claim has priority over which other claim. Otherwise, he would have to award the same good to several parties and thus render a judgment that contradicts itself.

For this reason, a common legal system like that of the European Union leads to lawyers resolving emerging contradictions between norms through the primacy of the law of the more comprehensive unit. This also follows Kelsenian logic. Kelsen was well aware that two norms can be in circulation at the same time that contradict each other. He tried to solve this problem through a hierarchization of norms, in which the higher norm annuls the lower norm in case of conflict. If in an intra-European legal dispute German law says one thing and Italian law says something else, then the only option left is to appeal to European law if one does not want to terminate the common legal system altogether.

So far, the legal logic. And this caveat is crucial. This is the purely legal logic of a “pure theory of law.” From here, one could ask the question why we have not yet arrived at a world state. This is not a rhetorical question. The lawyers who devised the Charter of the United Nations wanted exactly that to a good part, and to this day there is a not insignificant number of doctrinaires of UN international law who demand exactly that.

The reasons for this are intuitively clear to everyone. Capturing them cleanly is much more difficult. Because it is not one reason, but a thousand reasons. It is not the case that the will for freedom of the peoples alone prevents the world state, otherwise there would never have been a multi-ethnic state. It is also not solely due to the special interests of the elite structures in the individual states, otherwise several states would never have united, as in 1776 or 1871. If one wants to summarize these thousand reasons, then only the word frictions remains, in the plural, and in the same meaning in which Carl von Clausewitz uses this word in his theory of war: As the set of all reasons that prevent things from proceeding in reality as they do in theory. Such frictions cause a reduction in efficiency compared to the theoretical value.

That is at least the case in most instances. It should be said that in social systems, there can in principle also be something that we could call anti-friction: that is, efficiency-enhancing factors not considered in the theoretical planning. This is because social systems consist of independently acting agents. To stick with a military example: During the Afghanistan war, the Bundeswehr procurement office had not provided a sufficient number of targeting scopes. In a then-famous case, a soldier ordered a corresponding scope for €89.90 from online retailer Tchibo. That was anti-friction against the frictions in the Bundeswehr procurement office.

But what we see in this example is that anti-friction is much more likely on a small scale than on a large one. It is more likely that an individual soldier will privately buy missing equipment than, for example, the non-commissioned officers at the location organizing a collective order.

With that, we are already close to the reason why societal frictions counteract the legal tendency toward the universal state. Since I am not free from vanity, I would like to henceforth refer to this reason as Poensgen’s Law of Societal Friction:

Theorem: If two organizations differ only in the number of their members, then there are more frictions per member in the larger organization³ than in the smaller one.

Proof: