Vol. 21 No. 9 (September, 2011) pp.476-479
THE EUROPEAN COURT’S POLITICAL POWER: SELECTED ESSAYS by Karen J. Alter. Oxford and New York: Oxford University Press, 2009. 368pp. Hardback. £45.00/$93.50. ISBN: 9780199558353. Paperback. £19.99/$40.00. ISBN: 9780199595143.
Reviewed by Evan Rosevear, Department of Political Science and Faculty of Law, University of Toronto, Canada. Email: evan.rosevear[at]utoronto.ca.
THE EUROPEAN COURT’S POLITICAL POWER is a collection of the author’s published work on the European Court of Justice (ECJ) supplemented by introductory and concluding chapters, a chapter of previously unpublished research and the addition of a case-study to the discussion of Agents versus Trustees in chapter eleven. Published between 1994 and 2009, these works represent a corpus of work that compellingly advances the study of (supra-national) law and politics in a manner that balances the hardline scepticism underpinning power- and interest-oriented narratives of the law, with the more principled understanding of judicial decision-making that, broadly, characterizes doctrinal approaches to the topic.
The book’s thirteen chapters are divided into four sections. The first contextualizes the study of the ECJ, the second treats its development into a powerful political actor (1952-1980), the third its influence once developed (1980-2005), and the fourth consolidates conclusions drawn from her study of the ECJ and the study of international courts in general. Without seeking to minimize the contributions of each of the chapters, the remainder of this review will be restricted to highlights of the work and offer a more general analysis of the body of research as a whole.
Several propositions that Alter feels should be taken as settled in the study of the ECJ/international courts are set out in the introductory chapter. First and foremost is the notion that legal interpretation sits somewhere in the middle of the principled application of doctrine and the exercise of power, and the degree to which it is pulled one way or the other is the “stuff” of law and politics. Second, understanding the transformative capacity courts requires something more than the analysis of legal decisions. Finally, she advocates the twin rejections of neo-functionalist theory as an appropriate means of understanding legal integration (at least in the context of the EU) and of principal-agent theory as a useful meta-framework for the study international courts.
With respect to the political impact of judicial decisions, chapter eight outlines a cogent and persuasive theory of how an ECJ ruling can alter the balance of power in a given polity. First, there must be legitimate basis for the position advanced within the broader context of EC law upon which domestic actors can draw. Second, the litigants must advance their position within the domestic judiciary. Third, the EC-oriented arguments must be accepted by the relevant domestic court by either referring the matter to the ECJ or by [*477] applying ECJ precedent in the matter. Finally, to be broadly effective a legal victory must generally be a part of a multi-pronged strategy or larger movement of some type which has the ability to press for the application of the decision. While relatively broad, these four stages set out a clear conceptual framework most probably generalizable beyond the ECJ, and with some tweaking is likely applicable to national level courts; indeed, the similarities with Charles Epp’s (1998) “support structure” thesis are readily apparent.
The discussion of Principal-Agent theory as applied to the study of international courts in chapter eleven is an excellent example of the close attention paid to methodology throughout. Reminiscent of Shapiro and Green (1994), the critique of this rational-choice oriented approach avoids attacking the proverbial straw-man and develops a theory – Principal-Trustee – that is elegant, plausible, and openly acknowledges the insights drawn from its predecessors. Moreover, the conclusions drawn do not seek to discredit preceding scholars or alternative ontological or methodological approaches. Rather, the point is to advance the study of the phenomena in question.
The concluding chapter advances a number of more specific propositions about the process of international legal integration and the behaviour of courts in a political sense. Legal traditions (specifically, common versus civil) and monist versus dualist approaches seem to have little effect on legal integration at the international level. Rather, it is held that the “neighbourhood effect” – whereby the behaviour of key regional actors shapes how proximate countries behave vis-à-vis international law – has a much stronger impact on the integration process. This, Alter notes, is not to suggest that particular national legal cultures have no effect, simply that there does not appear to be a broader trend identifiable in terms of the standard categorizations of legal systems. An additional constraint upon legal integration at the domestic level appears to be the existence of a strong and established constitutionally empowered national apex court – a court in this position, it is suggested, is probably less willing to cede its authority. In terms of institutional design, particularly with respect to compulsory jurisdiction and the security of judicial tenure, theories premised on rational-contractual relations between judicial “agents” and appointing political “principals” do not appear to hold true empirically.
Alter’s work engages with the legal-doctrinal, rational-choice (Garrett and Weingast 1993), and “neo-functionalist” (Burley and Mattli 1993; Stone-Sweet 2004) approaches in a more or less nuanced manner. But, she argues, although at least the first two contain kernels of truth they are insufficient on their own to explain the development of the ECJ. Rather, an historical institutional approach is explicitly adopted and emphasis placed on political or “Bourdieusian” understandings of the Court’s interaction with the broader European community.
There are times, however, when rational-choice institutionalism may be a more appropriate label for the methodological approach. Granted, attempting to define a bright-line distinction between the two approaches is likely an exercise in [*478] futility. Nonetheless, the focus incentive structures, nested games, and the cementing of policy preferences through the cultivation of institutionally enforced costs imposed on alternatives points to a much stronger focus on actor rationality than one would normally expect. If there is a theoretical gap in Alter’s work it is here. Particularly with respect to the more recent pieces, the neo-institutional framework she adopts would likely have benefitted from a more explicit inclusion of the insights into meaning and argument provided by the discursive institutionalist approach (e.g. Schmidt and Radaelli 2004; Schmidt 2008) and by addressing the concept of issue-framing more generally.
Overall, Alter paints a picture of the ECJ and international courts more generally as semi-autonomous, mainly principled, somewhat strategic, constrained by the interests and power of other actors – both state and non-state – and conditioned by history. The framing and citations are primarily geared toward an international relations perspective on the role of law but there is much that comparativists and area scholars can take from this body of work. The theories and models the Alter constructs as well as the theoretical and methodological questions considered at very least point toward a number of likely lines of inquiry at both the national and regional levels. The in-depth qualitative analyses of particular cases used to derive and test theories and propositions found throughout Alter’s work are also a high point. For some, these in and of themselves may make the volume worth a read. All told, then, this work represents the fulfillment of a laudable research program, the process and results of which are broadly applicable, perhaps even generalizable.
As a final note, the collection contains somewhat less than 100 pages of material not readily available elsewhere – predominantly in PDF form via institutional library systems – leading one to question the value-for-money one would obtain by its purchase. To be sure, the new material effectively draws together the broader themes of the individual works. And, the previously unpublished research that constitutes chapter four does contribute to the understanding of the ECJ’s emergence. Nonetheless, aside from those who truly require the tactile experience of turning pages and scribbling in margins, it may be worth considering that the material might be more readily (and inexpensively) digested in electronic form.
Burley, Anne-Marie, and Walter Mattli. 1993. “Europe Before the Court.” INTERNATIONAL ORGANIZATION 47(1): 41-76.
Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press.
Garrett, Geoffrey, and Barry Weingast. 1993. “Ideas, Interests, and Institutions: Constructing the EC’s Internal Market.” In IDEAS AND FOREIGN POLICY, eds. J. Goldstein and R. Keohane. Ithaca: Cornell University Press. [*479]
Schmidt, Vivien A. 2008. “Discursive Institutionalism: The Explanatory Power of Ideas and Discourse.” ANNUAL REVIEW OF POLITICAL SCIENCE 11: 303-326.
Schmidt, Vivien A, and Claudio M Radaelli. 2004. “Policy Change and Discourse in Europe: Conceptual and Methodological Issues.” WEST EUROPEAN POLITICS 27(2): 183-210.
Shapiro, Ian, and Donald Green. 1994. PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE. New Haven: Yale University Press.
Stone-Sweet, Alec. 2004. THE JUDICIAL CONSTRUCTION OF EUROPE. Oxford: Oxford University Press.
© Copyright 2011 by the author, Evan Rosevear.