Time, history and legal interpretation

Abstract

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 particular 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 interpretation and propose that, while the concept of law itself requires temporal linearity, legal interpretation 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.