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Following his participation in the workshop on 'Autonomy of the EU legal order,' Francisco de Abreu Duarte (European Parliament) speaks with us about the socio-psychology of jurisprudence, the relationship between EU law and International law and the importance of practical experience with law-making and the application of law for legal scholars.

Francisco de Abreu Duarte

You are both a researcher in international law, and in your position as parliamentary assistant to MEP Ana Gomes you are also involved in law making and practical aspects of European and international law. How do you experience your roles as academic and practitioner of law?

I think it is essential for academics to have some degree of practical contact with the law in practice and law-making procedures. The contact between what we do as researchers or professors should be always deeply intertwined with what practitioners (among which politicians are most certainly key players) do in their daily life.  On the one hand, my experience as an APA has certainly turned me into a more complete academic, with a deeper understanding on the why’s and how’s of decision-making. On the other, however, it has also contributed to a certain cynical understanding of political and legal mechanisms, granting me insight over the sometimes murky world of policy-making. Both dimensions are essential to write good scholarship and to push the limits of the reach of our work as academics.

In your presentation you explained that you are coming to EU law with a background in international law and you suggested that the two legal approaches can learn from each other and that it’s good to have different narratives. What is your take on the relationship between EU law and international law?

I have always understood EU law and International law in a mother-daughter relationship fashion, historically tied by unbreakable bounds. I could never fully agree with the very common separation between the EU and International Law, deeming the first as an independent and novel creation and the second an old and outdated legal order. The fact is that EU is International Law, perhaps its very best creation so far, and should use its novelty and universal-reach to strengthen and not diminish international legal protections. I see the relationship between both legal orders almost as one of the old mother who, after many years of raising her daughter, now reaches for her help for strength and comfort. Int. Law needs the EU to grow stronger, as it might be its salvation from external politics, but the EU should never forget (and Brexit is a painful reminder) that it was created in that legal mind-set and that its nature is inescapable.  The key seems to lie on combining both narratives, learn the best from each legal order, and together work with other international courts and tribunals to develop the highest common-level protection for people around the world.

You also refer to a ‘deeper psychoanalysis’ of why the CJEU behaves the way it does. Do you take an interest in socio-psychological aspects of jurisprudence and law making? Have you looked into the social dynamics within the CJEU and the CJEU’s interaction with other actors more deeply?

When I use the term psychoanalysis I am aware of its perhaps provocative connotation. It intends to raise precisely this idea that law, politics or economics can never be separated from the analysis of the decision-making actors who are, in the end of the day, just people. When a Court decides on a certain judgment, it is not an abstract entity gifted with exceptional powers of exemption and neutrality. They are people, judges, subject to outside pressures, aware of the surrounding world, with their political, social and economic convictions. I believe it is important for lawyers and academics to look at decision-making as part of a bigger sociological analysis, one that can help us understand very controversial decisions such as the Opinion 2/13. From the work I have conducted, I believe the CJEU is a very impartial court and it would be difficult to argue against it. But regarding autonomy, and because it is such core-principle of EU integration, with consequences that go much beyond external action, the CJEU has allowed for certain emotional considerations to get in the way of coherence and pure law-based arguments. In part, this can be attributed to the abstract nature of autonomy itself, difficult to tame in absolute criteria. Nonetheless, with such an abstract concept, what legal operators desire and need is coherence and legal certainty. The way I see it, Opinion 1/17 is the greatest proof that there is no legal certainty in this domain and that the CJEU, depending on the matter at hand, will construct different notions of autonomy, injecting it with more and more conceptual fog. Here, only a socio-psychological analysis of jurisprudence might give us some answers for the future.

You are at the beginning of your career, with many pathways open for you. Do you already have a clear idea about the direction you would like to move in? Or will you go step by step, grasping opportunities as they come?

The strategy I have been adopting throughout my (very!) young career is somewhat of a mix-approach. I generally set a specific course, a main route to achieve a certain goal. I have wanted to become a professor and teach since I can remember and it remains my professional passion from which I could never escape. So I set as an objective to become a professor somewhere -somehow in the future. Then, during the course of this main route, the road might present me with different opportunities, little derails from which I can learn and develop as a professional and as a person. I try to grasp each and every one of them (hence the early white hair!) and to combine a strong academic background with practical experiences, in both law and politics. I believe I will grow more as a professional if I do many things, if I fail many times, so that when the time comes, if it ever does, for me to teach and develop EU and Int. Law, I might be able to provide society with practical inputs. I remain, however, always calm and positive. I am often amazed on what life can grant us with a lot of work and a little luck, so I remain open to be amazed at every stop of the way.

 

More information about the workshop on the 'Autonomy of the EU Legal Order.'