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Uncommon Decency

Nov 24, 2021

“The judges of the nation are only the mouth that pronounces the words of the law, inanimate beings, who can moderate neither the strength nor the severity of the law.” When Montesquieu wrote these words in The Spirit of the Laws in 1748, he laid out the ideal framework for the interaction between lawmakers and judges. Montesquieu’s ideal vision contrasts with the messy reality of the judiciary, which has to deal with unclear laws or even contradictory ones, a tension enhanced by the emergence of a new legal order, the EU. Since the 1960s, the primacy of EU law emerged as the sine qua non condition for the good functioning of the bloc, but over the past months a series of political and judicial actors have challenged the notion head on. The most visible broadside came from Warsaw, with the Polish Constitutional Tribunal ruling in its K 3/21 decision that 3 articles of the Treaty on the European Union were unconstitutional. In the French presidential election, the primacy of EU law has also been under heavy fire, including from former Brexit negotiator Michel Barnier, a sign that the discontent is even felt within more centrist circles. In this episode we tackle head on this controversy with two experts of EU law, Nicole Scicluna, Assistant Professor in Government & International Studies at the University of Hong Kong and Paul Craig, Emeritus Professor of Law at the University of Oxford.

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