Search Results

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.

This chapter devotes attention to the specific features of the new centre at the European level, and focuses on the peculiarities of its institutional design. The typical centre-building features of territorial expansion, legal centralization, integration of the national and supra-national techno-bureaucratic infrastructure, and competence accretion have developed together with a persisting weak territoriality, an unclear competence attribution in vertical and horizontal senses, a partial constitutional empowerment of the subjects qua economic agents, and uncertain legitimacy sources. This configuration points to an ‘elite consolidation’, resulting from an alliance between national rulers (the national governments, the MPs) and the supra-national techno-bureaucratic centre builders (in the Commission, the Court, the European Central Bank). It is argued that any attempt to separate the powers, distribute the competencies, and strengthen direct forms of legitimacy would upset the inter-elite form of control on which this consolidation has rested to date.

Proposes and tests a theory of legal integration as a process by which a supranational legal system has been constructed in Europe, centred on the European Court of Justice. It argues that legal integration has been driven by the emergence and consolidation of specific causal linkages between three factors: transnational exchange, triadic dispute resolution, and the production of legal rules. Once forged, these linkages generate a self‐sustaining dynamic that serves to expand the scope of supranational governance and to accelerate the institutionalization of existing supranational policy‐making authority at the expense of intergovernmental arrangements. The chapter begins by elaborating the principal‐agent model of delegation that is supported by the intergovernmentalist approach, and provides a theoretic explanation of the process by which bargaining between the principals (national governments) is replaced by decision‐making within the agents (supranational organizations). The application of the theory is tested against two policy domains—the free movement of goods and the provision of social services.

Provides an account of the status of the enlargement process in the EU, both in the candidate countries and in terms of institutional changes at the EU level. In particular, it argues that European enlargement is a combination of ‘institutional and political hypocrisy’. While political hypocrisy is the result of the purposeful strategy of specific actors that wilfully disobey EU law, institutional hypocrisy results from involuntary non‐compliance due to the lack of capacity or clarity; both have been a systemic feature of legal integration and a major driving force of the European constitutionalization process. However, as the heterogeneity of the EU member states increases, enlargement may well lead to a substantial erosion of the legal and policy coherence of the EU. The first section of the chapter discusses the problem of non‐compliance, the second characterizes the European polity as resulting from the enmeshment of the process of Europe's legal integration with different national legal systems, the third and fourth sections discuss the southern and eastern enlargements of the EU, and the fifth section concludes by pointing to differences in national legal traditions that make institutional and political hypocrisy a systemic outcome of the process of European enlargement.

This chapter addresses the role of private law-making (PLM) in European legal integration. It argues that PLM has significantly contributed, and can further contribute, to European legal integration but it has also changed the meaning and the scope of integration, and does not coincide entirely with harmonization of rules and institutions. In particular, PLM has reinforced the regulatory and policy-oriented nature of European private law. But PLM goes well beyond the domain of private law, influencing the core instruments and principles of European market design and regulation. It has played a significant role in the creation of an integrated payment system (Euro payment), a European financial market, a European trading system including electronic commerce, and even of a private social security system (pension funds and other forms). It has played an important role in consumer and environmental protection by contributing to the definition of product and services safety. PLM has provided the basis for many technical standards including safety standards related to both products and processes.

This chapter explains how the European Court of Justice (ECJ) succeeded in transforming the European legal system against the will of member states. Section I explains how the ECJ escaped member state control to orchestrate an institutional transformation that national governments did not desire. Section II explains why member states could not reassert control and change the system back to what they originally planned. Section III considers when and how national governments are able to influence and limit the process of legal integration.

While the regulatory State is perceived as a relatively novel phenomenon, civil liability has been utilized as a regulatory device even before administrative regulation. Several different regulation and administrative tools have already been developed across various regulatory States, and as such also include extensively using private law. Although the interaction between regulation and civil liability as measures for the management and assessment of risks have previously been examined, the need arises to reconsider their relationship in the context of the European framework of legal integration since both strategies are not without new developments. This chapter attempts to look into how the limits of compensation resulted in welfare regulation, and how such shortcomings have further resulted from the internal structure of civil liability and the weaknesses of labour and contract law.

This chapter deals with the issue of energy in the context of legal integration in Africa. It gives a background of the main experiences of legal integration in Africa in the area of commercial law, showing their main characteristics and outcomes so far. Considering the critical importance of energy for national and sustainable development, and how energy issues constitute one of the main subjects of international commercial transactions in Africa, it examines the pros and cons of including energy law in legal integration processes. It further emphasizes the importance of an enabling legal and regulatory environment that promotes transparent access to modern energy services and highlights possible obstacles to that inclusion.

This chapter discusses a renewed interest in a sociology of constitutions in recent years. This interest has emerged not least due to the significantly changing nature of constitutions and constitutionalism, not in the last place as a result of apparent constitutional qualities inherent in legal regimes beyond state borders. A historically and sociologically informed approach helps to study European integration as a legal and constitutional project, and highlights its fragility and tensions, increasingly visible in recent years. The chapter first introduces a sociological view of constitutions and constitutionalism in general terms, and then goes on to discuss the multi-faceted process of constitutionalisation and judicialization in postwar Europe from a sociological angle, with particular emphasis on the depoliticizing and at the same time contested nature of this process. The final part of the chapter reflects on contemporary issues related to the problematic dimensions of the constitutionalising and judicialising process, including a backlash against universal rights and supranational law in many European societies.

The chapter presents the scholarly debate from the 1990s onwards on the power of courts to alter politics. The interpretations of courts’ ability to generate political change are contrasted by distinguishing between the ‘dynamic’ and the ‘constrained’ court views in both comparative and EU studies. This dichotomous understanding of judicial influence is found to be insufficient for both theoretical and analytical purposes. Against this background a taxonomy is developed in the chapter, which allows more variation in judicial influence to be identified. The taxonomy contains four types of legislative response with different implications for judicial influence on policy outputs: codification, modification, non-adoption, and override. Against this background, different expectations of what may condition judicial influence are formulated: time as a factor, decision-making rules, the role of the Commission, and political positions. The taxonomy and the explanatory factors of variance constitute the theoretical framework for the empirical analysis in subsequent chapters.

The chapter presents the main findings of the book and concludes. This book has examined the extent to which and the conditions under which CJEU (Court of Justice of the European Union) judicial decisions influence EU social policy outputs. The overall finding is that judicial influence on EU social policy outputs varies over time and that EU legislative politics has the capacity to condition the general impact of legal integration. Rather than confirming the ‘judicialisation of politics’ in which parliamentarian sovereignty ‘has lost its grip’, the book’s overall finding demonstrates how the broader reach of jurisprudence results from continuous interplay between law and politics, but through which the interpretations, perceptions, and interests of political actors and governing majorities matter for judicial influence on politics. Despite fragmentation, majoritarian rule has not withered away in EU politics.

This chapter provides an overview of the book’s argument for an English-based, source-oriented approach to EU Translation. Chapter 2 constructed the task of EU Translation from the objectives of the EU policies on legal integration and language diversity. Chapters 3 and 4 assessed current EU Translation practices. Chapter 3 demonstrated that the principles underlying EU’s Institutional Multilingualism require that English be the official source text of EU Translation and the sole language version of EU legislation. Chapter 4 established that EU Translation practices are inconsistent in terms of Schleiermacher’s translation “orientations.” Finally, Chapters 5 and 6 offered an alternative approach to EU Translation. Chapter 5 contended that a source-oriented strategy promises to diminish the risk of discrepancies and inconsistencies between language versions, and lies on philosophical concepts of language and translation. Last, the challenges involved in implementing the proposed English-based, source-oriented technique of EU Translation were illustrated in Chapter 6.

This chapter argues that the theory of international law offered by Alberico Gentili is marked by a delicate, if not confusing, combination of the two principles of equal and unrestrained sovereignty of states, on the one hand, and of an international legal integration grounded on natural law, on the other. It suggests that Gentili does not provide the conceptual resources to establish—as a necessary component of international law’s procedures, or at least as an aim—a forum to prevent the law from only ever working to the benefit of the powerful. There is no conceptual, let alone institutional, room for public (in the sense of universal) deliberation of all parties on equal standing so that the affected parties—rather than some authority with either a particularistic pedigree or with more universal, but shaky legitimacy—could agree on common interpretations of the law.