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JICL-6(2)-9.Eu Laws As Cultivars.Indd EU LAWS AS CULTIVARS IN THE UK BEFORE AND AFTER BREXIT Elspeth Attwooll*, Noreen Burrows** and Esin Örücü*** Abstract: This paper analyses principles of equal treatment and rights of residence of EU citizens in the UK before and after Brexit, regarding EU laws as cultivars. By using horticultural metaphors such as cultivars, runners, cuttings and layering for the laws, and cultivators and gardeners for the actors, the analysis brings a new set of metaphors into the plethora of metaphors used by comparative lawyers, in the hope of illustrating the status of EU laws in the UK, regarded here as our allotment. Before Brexit, after Brexit and the form that Brexit might take are all considered.1 Keywords: legal transplants; horticultural metaphors: cultivars; layering; runners; allotment; cultivators; gardeners; EU laws: equal treatment; rights of residence of EU citizens I. A Conceptual Search A. In general Comparative lawyers have always been rather fond of metaphors.2 The choice usually hails from a number of sources such as medicine (transplants, implants, inoculation, digestion), music (transposition, tuning), the culinary world (blending, salad bowl, salad plate, melting pot, broth, infusion, diffusion) and horticulture and * Lectured at Glasgow University for more than thirty years, specialising in Jurisprudence and Comparative Law. From 1999 to 2009, she was a Scottish Member of the European Parliament. Her time there included participation in its High Level Group on Gender Equality and in its Committee on Employment and Social Affairs. She is currently an Honorary Affi liate of Glasgow University. [email protected]. ** Emeritus Professor of European Law, Glasgow University. [email protected]. *** Professor Emerita of Comparative law, Glasgow University; Emeritus Professor of Comparative Law, Erasmus University Rotterdam; Honorary Research Fellow, Glasgow University. Esin.Orucu@glasgow. ac.uk. 1 This paper was submitted in February 2019 and updated on 8 July 2019. It is based on the information available at that time. Specifi cally, it has since become unclear, and remains unclear, as to if and when and how the UK will exit the EU. 2 See David Nelken, “Legal Transplants and Beyond: Of Disciplines and Metaphors” in Andrew Harding and Esin Órücü (eds.), Comparative Law in the 21st Century (Kluwer International, London, 2002) p.19 and David Nelken, “Beyond the Metaphor of Legal Transplants? Some Consequences of Autopoiesis Theory for the Study of Cross-Cultural Legal Adaptations” in J Priban and D Nelken (eds.), Law’s New Boundaries: The Consequences of Autopoiesis (Dartmouth: Ashgate 2001). [(2019) 6:2 JICL 331–346] JJICL-6(2)-9.EuICL-6(2)-9.Eu LLawsaws AAss CCultivars.inddultivars.indd 333131 223/10/193/10/19 11:46:46 PPMM 332 Journal of International and Comparative Law gardening (transplants, propagation, stem cuttings, grafting, potting, re-potting, pruning, pollination, fertilisation, cross-pollination, cross-fertilisation, laying, layering, hybrids).3 Although the use of metaphors has sometimes been regarded as an excuse for lack of analytical theory, the metaphoric language of comparative law is extremely fruitful — even when it is just a visual aid to understanding — and can be put to a new use in an analysis of the state of affairs in the UK legal scene before and after Brexit. Comparative law has many functions past, present and future, and our approach in this paper can demonstrate how one of the major areas of comparative law, transplants and trans-frontier mobility of law, and the horticultural options we decided to employ, can help us understand future developments in the UK, which, in this analysis, we will refer to by another metaphor, as our allotment.4 The incoming laws in this process could be fi nely tuned to the needs of the domestic market, pruned, re-fertilised and re-potted, thus creating cultivars. Cultivars are distinct from varieties, requiring human intervention to exist, their characteristics being maintained during propagation. Cultivars, our choice in demonstrating the changes that have already been created and will create new breeds of EU laws while being re-transferred to the UK, is a horticultural, botanical metaphor. Although we will be looking at the fi nal products, the cultivars, the process itself, of becoming, will also be in our sights. “Cultivars” is an organic metaphor that is accompanied by others such as runners, bulbs, pruning, grafting and layering. Soil, fertiliser, setting root and blossoming can also be used. In the birth of the cultivars, there is an instance of adaptation to the new soil. In fact, cultivars are propagated in order to achieve this fi t into the new soil and conditions. They gain their own genetic diversity, which means adaptability and resilience to changing conditions. In the process of retaining EU laws in the UK soil after Brexit, the process of hybridisation may produce new cultivars. In the natural world, these are plants that have been produced in cultivation by selective breeding. Here the word selective is of utmost importance. The new varieties could be related to, and even be the result of, the new breeding pot, the soil mixture that is different, the different fertiliser used and bits to be pruned, such as cutting off dead branches. In our case, the cultivator, the re-potter, the grafter, the soil and the fertiliser are 3 For transplants and other metaphors, see Alan Watson, Legal Transplants: An Approach to Comparative Law (Scotland: Scottish Academic Press, 1974) and (Athens, Georgia: University of Georgia Press, 2nd ed., 1993) footnote 53, p.30 where he also mentions imposed reception, solicited imposition, crypto reception and inoculation. Also see for a more complete list, Esin Örücü, “A Theoretical Framework for Transfrontier Mobility of Law” in Rob Jagtenberg, Esin Örücü, and Annie de Roo (eds.), Transfrontier Mobility of Law (The Hague: Kluwer Law International, 1995) p.5. Here, we see cross pollination, engulfment, emulation, infi ltration, seepage, infusion, digestion, salad bowl, melting pot and transposition. 4 In its literary meaning, allotment refers to a small area (especially in the UK) as part or share of public land rented as a vegetable garden. In our metaphoric use, this is not a rented land and happens to be a garden in the UK, where we grow our fl owers, vegetables and fruit. It is the UK legal terrain, where laws borrowed, domestic or domesticated, are planted. JJICL-6(2)-9.EuICL-6(2)-9.Eu LLawsaws AAss CCultivars.inddultivars.indd 333232 223/10/193/10/19 11:46:46 PPMM EU Laws As Cultivars 333 all different. In some areas, the soil is well conditioned and maintained and the gardeners have successfully pruned, such as in equal treatment, whereas in others, such as the rights of residence of EU citizens, there is a question mark about the long-term health of the plant. The metaphor “cultivars” brings with it a few others, one of which is the cultivator. Indeed, here the gardener has changed and the transfer, grafting and re- potting have also thereby changed. Lord Denning, when talking of English common law abroad in the ex-colonies, said that the English common law resembled the “English oak”, which only fl ourished in the English soil, and when exported to a new soil, in order to take root and prosper, had to be pruned to fi t this new soil.5 Thus, EU laws in certain areas where they are not already imbedded will take new forms in order to fi t the needs of the society here in the UK and, more important, its sub-divisions, England and Wales, Scotland and Northern Ireland, adapting to the new soils and climates. At the level of directives, regulations, decisions, principles and rules, changes have to be traced, analysed and assessed. The gardeners, that is the legislator and the courts involved in implementation, will be the cultivators: Courts will water and fertilise the new variants created by the legislator. Courts in the UK will become even more important as gardeners in the coming years, in their efforts to keep the garden in shape and fl ourishing. The legal systems in the UK are already the results of reciprocal infl uences between common law and civil law at work, intermingling and intertwining. This historical fact was of vital importance when EU law came into this soil in many of its forms, either directly applicable or to be acclimatised. Obviously, there was also cross-fertilisation and cross-pollination going on between the UK and the EU as well as between the UK and the other Member States. The mixing of metaphors here could be apt, as the visual image becomes more helpful in the analysis of EU laws in the UK after Brexit. Terminologies used by comparatists in classical statements of legal movements, such as transplant, imposition and reception, have been for quite some time supplemented by a colourful vocabulary highlighting nuances in individual instances of this mobility such as grafting, implantation, re-potting, cross-fertilisation and so on. New notions and bases for analysis are constantly being developed such as collective colonisation, contaminants, legal irritants, layered-law, hyphenated-law and competition of legal systems. Images such as contamination, inoculation, irritation, diffusion, infusion, seepage and infi ltration are all appropriate in describing present day encounters, and the terms reception, imposed reception and concerted parallel development, the activities. Surveying all these, we decided to stick with horticultural metaphors, springing from the original metaphor of “transplant”.6
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