Loves’ Labour’s Lost: fighting austerity and crisis with obiter dicta. A gloss on the expediency of constitutional justice in times of crisis

Yiannis Z. Drossos, Professor of Constitutional Law, Athens Law School

Volumes of legal work, among which also pages of excellent legal refinement, have been mobilized to convince the good old times to come back. It didn’t help. There is no grumble in this statement; it’s just the acknowledgment that, in conditions of the extremity of the actual crisis, something else precedes and law follows. In Shakespeare’s play a King and three lords have lost their labours, since their disguise into somebody else did not help them to successfully suit a princess and three ladies; ultimately the objects the King’s and the lords’ desires have asked them to seek them again at a better time. In the cases discussed here, the legal labours to disguise the resentment against the inescapable new realities as breach of the existing constitutional order are lost, to the extent that they have not stopped the new course of things; more pleasant adjudication has to be sought for at better times.

At the end of the day, the Courts have saved the face of the constitutional normalcy. No-one has declared the existing legal order null and void in toto. However, the changes in the application of the existing legal texts are radical. Paraphrasing the Roman saying Caesar dominus grammaticae, we can hardly avoid observing that the crisis has dominated over words and phrases and has twisted them to accommodate with the overwhelming new realities. These new realities have arrived like calm water, seemingly harmless at the beginning, and then overflow everything and no force seems strong enough to stop them. Somewhere in between all these changes a new kind of Schmittean moment seems to arrive as well, a very different from the archetypical one, one, but not less effective.