A “European community of law”? On the semantic history of Rechtsgemeinschaft
If German speakers had not already become accustomed to talking about the European Rechtsgemeinschaft (“community of law”), this term would likely seem highly peculiar to us. In German conceptual history, the term "community" (Gemeinschaft) was used to convey the idea of an ideal type of actual, organic and permanent associations of people. Gemeinschaft in German also carries normative overtones that, for example, Gesellschaft (society) does not. My research explores the seemingly paradoxical semantics contained within the term Rechtsgemeinschaft.
The expression Rechtsgemeinschaft has been popular since the 1960s. It summarized and symbolized the rapid process of European integration, and its meaning became imbued with a sense of both current and future expectations of political, economic and legal integration to come. The term was particularly associated with the idea of pro-integration policies. Legal scholars continue to use the term in their descriptions of the EU’s constitutive elements.
For a long time, European lawyers in Germany did not discuss the use of the term Rechtsgemeinschaft. Particularly in the early days of integration, concepts such as supranationality and constitution received much more attention. For decades, the fact that the EEC – and later the EU – was a Rechtsgemeinschaft, was tacitly taken as given. Now, as some jurists detect a crisis of European law in the controversies regarding the project of furthering European legal integration, the term is being called into question. Is Rechtsgemeinschaft still a fitting description both of the EU as it is and of what it might aim to be in future?
My research project is a detailed investigation of how the use of the phrase europäische Rechtsgemeinschaft has changed. The expression has oscillated between being a technical term and an aspirational one conveying a sense of pathos. What was and what is the function of the word as a legal-dogmatic, legal-political or historical-teleological argument? How great was the tension between its normativity and the reality of integration policy? Does the idea of a European legal community underlie our understanding of European law? With these questions, the study is close in content to the classic German history of concepts, but also draws upon the linguistic critiques of conventional conceptual history.
This case study will demonstrate the impact of legal semantics. It contributes to a better understanding of the normativity of legal texts beyond positivist rationality. In addition, it allows us to map the term’s changeability in the debates on integration. In this way, the research project is also a contribution to the beginning self-historicisation of European law.