Judicial Legitimacy in the European Union

The chapter begins with some reflections on the concept of legitimacy, as it is used in the debates on the EU and its judicial system, particularly the ECJ. In the following section, it seeks to present a framework for studying the ECJ’s legitimacy, which does justice to its dual role: to decide particular cases and at the same time to fulfil much wider functions in the EU political system. The third section then focuses on the perennial problem of judicial legitimacy in the Western legal tradition: how to legitimize creative moments of judicial interpretation of law, which are at the same time unavoidable and deeply problematic for what is sometimes called the liberal doctrine of politics. The fourth section looks in some detail at the recent turn to semantic pragmatism and its relationship to the democratic theory and discusses some of its shortcomings.

The Relevance of the Network Approach to European Case Law

The chapter argues that the network approach is a viable methodology in legal empirical research, which can be used to study the case law of the Court of Justice. To demonstrate this potential, the chapter: first, shows how to obtain detailed information about the law from the citation network; second, it illustrates how to assess the legal relevance of cases by looking at case citations; and, third, it explores how to infer the doctrinal influence of selected landmark cases. All examples adapt different citation network tools to the study of legal structures and legal discourse which can focus, frame, support, and guide doctrinal analysis.

Introduction

This volume has its origins in the 2017 Academy of European Law summer course on the Law of the European Union which focused on new legal approaches to studying the Court of Justice. The chapters explore a number of innovative legal approaches to studying the Court. Each of these approaches differs from the classic, and still dominant, doctrinal work of understanding and systematizing the Court’s jurisprudence. Developing critical, large data, historical, sociological, and reflective institutional approaches to the Court of Justice, the contributors aim to enrich our understanding of the Court of Justice and to expand our understanding of the range of methods, approaches, and sources available to study it. The contributions exemplify the inter-disciplinarity which increasingly characterizes the study of the CJEU.

From Close-Ups to Long Shot

In a context in which EU case law is increasingly politicized, this chapter questions our analytical equipment when it comes to understanding the ‘political role’ of the Court of Justice of the European Union (CJEU). Moving from close-ups to long shot views of EU case-lawyering, the chapter repositions judicial decision-making in a dense web of political, social, and professional ramifications within and outside the Court itself. By articulating micro, meso, and macro levels of analysis, it escapes ontological discussions about the political nature of the Court (‘neoliberal’, ‘federalist’, etc.) and suggests a research strategy able to empirically measure and geographically map out the Court’s embeddedness in Europe’s laws, politics, and societies.

The Many Ages of the Court of Justice of the European Union

From its origins in the Schuman Declaration of 9 May 1950, the Court of Justice of the European Union has developed into a legal leviathan, exercising a profound influence on the Union through its widely studied case law. That case law has been lauded and criticized in equal measure. Some see it as bold and ingenious, while others consider it the product of a rogue court. Who were the individuals who made the early Court tick? What were the obstacles the Court had to overcome in order to achieve its current status? Why were the Member States slow to grasp the significance of the Court’s work? What is the relationship between the Court and the General Court, created by the Council in 1988 to alleviate the pressure imposed on the Court itself by its growing case load? This chapter addresses these questions in their temporal, political, and geopolitical context.

Waiting for the Barbarians

This chapter offers some methodological insights to those who wish to embark on a study of the archival history of the European Court of Justice (ECJ). Through her voyage into this newly opened archive, the author unpacks the comparative legal history emerging from the jurisprudence of the ECJ, a supranational court embedded in different European legal traditions. The author relies on the findings of the new legal historians who have brought to the surface legal and political resistance to the constitutionalization narrative of the ECJ. She also relies on the work of sociologists who have focused on professional networks of Eurolawyers as a powerful engine for the integration and liberalization of the single market. By deploying these insights, the chapter offers a novel reading of the grands arrêts through the dossiers de procédure now open to the public in electronic format at the Historical Archives of the EU.