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The evolution of the European Community (EC) towards a supranational constitution is charted by combining three different perspectives. First, an examination is made of the major features of the integration process since 1959, which argues that the European market and polity developed symbiotically, as the activities of economic actors, organized interests, litigators and judges, and the EC's legislative and regulatory organs became linked, to create a self‐sustaining, dynamic system. Second, the ‘constitutionalization’ of the treaty system is investigated, and the activities of the European Court of Justice (ECJ) surveyed; among other things, constitutionalization secured property rights for transnational market actors, expanded the discretionary powers of national judges, and reduced the EC's intergovernmental character. Third, the relationship between the ECJ and the national courts is considered, focusing on how intra‐judicial conflict and cooperation have shaped the production of specific constitutional doctrines; through these ‘constitutional dialogues’, the supremacy of EC law was gradually achieved, rendering it judicially enforceable. Overall, the chapter situates the development of the European legal system within the overall process of European integration.

Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of governance, the judicial mode, consolidated as a stable set of practices; it explains that the approach taken combines three strains of theory – theory on judicialization and governance, on the courts as commitment devices, and on the dynamics of judicial rulemaking and precedent. The second section, European Integration and the Legal System, indicates that the book expands on previous efforts to elaborate and test a theory of European integration, and shows that its primary focus is on the impact of adjudicating European Community law on the institutionalization of the European Union (EU), rather than on the impact of EU law on national legal systems. The third section, Determinants of Judicial Discretion in the EU, looks at the question of how the European Court has been able to have such an impact on the course of European integration and the work of the national courts. The fourth section, Precedent and the Path Dependence of Legal Institutions, focuses on why legal institutions tend to develop in path dependent ways; it begins by conceptualizing precedent, and then attempts to show how legal systems can develop in path dependent ways, and discusses how the book goes about analysing precedent in Europe. The last two sections look at the case selection and data used in the book and give a brief outline of its structure.

To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This second paper, which was originally published in the American Political Science Review in 1998, employs econometric and other modes of statistical analysis as well as qualitative ‘process tracing’ to evaluate specific causal propositions about how European Community (EC) integration and the construction of the European legal system (as enforced by the European Court of Justice) have proceeded. The research design constitutes a mixed means of testing: (1) deductive derivation of hypotheses from materials developed in prior comparative research, (2) collection of data to operationalize the theorized variables, (3) testing of the hypotheses through quantitative data analysis, and (4) cross-checking of these results and exploration of other theorized relationships or dynamics (qualitatively). The research leads Stone Sweet and Brunell to propose a theory of European legal integration (i.e. the process by which Europe has constructed a transnational rule-of-law polity), which integrates three interdependent causal factors: contracting among individuals, third-party dispute resolution, and the production of legal norms. The theory is tested, with reference to the EC, in two stages: first, the construction of the legal system is explained and the relationships between the three key variables are analysed over the life of the EC; second, the impact of the operation of the legal system is examined on governance (i.e. on policy processes and outcomes) at both the national and the supranational levels.

The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.

The general process of institutionalization in the European Union is examined from a macro perspective, building on the theoretical materials developed in the earlier book European Integration and Supranational Governance, and examining the extent to which linkages between rule-making (legislation), dispute resolution, and different forms of transnational activity have created a dynamic, inherently expansionary system. The process is evaluated from the standpoint of institutionalist theory by testing specific hypotheses against relatively comprehensive quantitative measures of integration: trading, legislating, litigating, and lobbying within the context of the Treaty of Rome. The main findings are that (1) increasing economic transactions, (2) the construction of the Brussels complex, (3) the capacity of supranational authorities to produce legislation, and (4) the operation of the European Commission (EC) legal system have become linked through a complex set of feedback loops that binds them together in a self-reinforcing system that broadly determines the course of integration. Although the perspective used is a macro one, the authors emphasize actors and agency: as increasing numbers of actors learn how to be effective in the EC, they build and consolidate new arenas for political activity, thereby bolstering the centrality of supranational governance.

This chapter begins with a brief discussion of the transformation of the European legal system. It then describes the purpose of the book — which is to explain why national governments accepted an institutional change that greatly compromised national sovereignty — as well as the lessons learned from the European experience. The remainder of the chapter details how the European Court of Justice (ECJ) used legal interpretation to transform the European legal system. Section I explains how the European legal system was originally designed to function, and how it worked before its transformation. Section II explains how the ECJ transformed the European legal system, embedding the Court's provocative legal interpretations into the political and legal context of the period to give a sense of exactly what was needed to turn the ECJ's audacious declarations about a transfer of national sovereignty into a real transfer of national sovereignty. Section III outlines the structure of the rest of the book.

The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.

An examination is made of the impact of the European Court of Justice (ECJ) on the institutional evolution of European Union sex equality policy, following the provision in the Treaty of Rome (Art. 119 EEC, now Art. 141) that men and women would receive equal pay for equal work – a provision aimed at protecting businesses from unfair competition. This same provision now bestows a positive right on individuals throughout the Member States, and is a judicially enforceable right that remains the backbone of an ever-expanding European social-justice policy. Over time, strategic action on the part of litigants and their lawyers and the ECJ’s judicial rule-making capacity has constructed a supranational space in which women can not only demand the right to equal pay but can also receive protection as pregnant workers. This dynamic process is the focus of the analysis presented, and involves an examination of three basic mechanisms of institutional evolution: the process by which self-interested private litigants and their lawyers are able to activate the European Union (EU) legal system through the Art. 177 (now Art. 234) procedure (which allows national individuals to invoke EU law before national courts); the ECJ’s authoritative interpretation of Art. 119 (focusing on how it became directly effective in national legal systems); and the feedback effects of this judicial rule-making in terms of how the litigation environment has been changed, and the EU and national-level policy consequence. In particular, the latter are traced through the development of EU pregnancy and maternity rights.

This chapter explains how the transformation of the preliminary ruling system contributed to the emergence of a rule of law in Europe where violations of the law are brought to court, legal decisions are respected, and autonomous influence of law and legal rulings extends to the political process. Section I shows how the weaknesses of the legal system designed by the Treaty of Rome undermined the authority of the European Court of Justice (ECJ) and state respect for European law. Section II shows how the transformation of the European legal system changed the way the legal process operated, inducing greater respect for European law and extending the shadow of the law into the political process itself. Section III explains how the transformation extended the influence of law and courts into the political process of European integration.

Comparing jurisdictions is not simple; it can even be impossible unless one chooses a rather specific perspective from which to analyse the situations being compared. Looking at the House of Lords from the point of view of continental European legal systems requires the identification of a link between the various European constitutional courts and the highest British court. Today this link can be found in the overriding duty to respect the rights accorded by the European Convention on Human Rights and Fundamental Freedoms. There is, then, something in common between the various courts: it takes the form of the need to adhere to Convention rights. In this context, this chapter distinguishes between the ways in which these rights are integrated into the different constitutional systems and the ways in which they are interpreted.

Almost two centuries since Tocqueville published the first volume of De la démocratie en Amérique (Democracy in America), it brought astonishing changes. Tocqueville argues that although the American judiciary conserves the traditional traits of European legal systems, it nevertheless has a political power that is unknown in Europe and distinctively characteristic of American society. The American legal systems preserve the three characteristics that traditionally distinguish the judicial system elsewhere. The first is the serving as an arbiter of dispute, the second trait consists of the fact that the judiciary must always address “particular cases” and not with general principles. And the third is that the judiciary can never act spontaneously, but only in response.