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concluding chapters, a chapter of previously unpublished research and the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.
REFERENCES:
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.
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© Copyright 2011 by the author, Evan Rosevear.