FromThe Law and Politics Book Review
Vol. 9 No. 2 (February 1999) pp. 60-61.
EUROPEAN PUBLIC LAW by Jack Beatson and Takis Tridimas (Editors). Oxford: Hart Publishing, 1998. Distributed in the United States by Northwestern University Press. 199 pp. Cloth $60.00. ISBN 1-901362-24-8.
Reviewed by Mary L. Volcansek, Department of Political Science, Florida International University. Email: VOLCANM@FIU.EDU.
EUROPEAN PUBLIC LAW is a title that misleads and, in the case of readers of the Law and Politics Book Review, might tempt one to scroll past it. That would be a mistake. This collection offers a great deal even to those whose focus is strictly on domestic American law and courts and to those who study law and legal institutions cross-culturally. Obviously, it is also highly appropriate for those of us who look at European courts generally and at the European Court of Justice (ECJ) more particularly. Some of the chapters are rich conceptually, as they define and apply concepts of legal transplantation, convergence and cross-fertilization, concepts that could be beneficially used to study political choices made by judges in the American states or in the emerging new democracies, just as readily as in the context of the European Union. More surprising is the extent to which this slim volume can inform discussions about judicial review. Since the U.S. Supreme Court is the oft-invoked parallel to the European Court of Justice, the comparisons drawn by the European writers in this collection allow Americans to view our own high court through a different lens. Thematic questions at the base of most of the chapters are those that form the foundations for analyses of the relations among law, courts and politics. These include the role and power of courts, judicial review, the role of a written constitution, legitimacy, sovereignty, majoritarianism, and the "human rights ideology."
The pieces included in this book came from two conferences on European public law and on cross-fertilization of concepts in European public law. The inclusion of both in a single collection causes a degree of disjuncture, since the first focused specifically on the European Court of Justiceís proclamation of the liability of nation states for failure to meet their obligations under the treaties of the European Union. The second was more broadly conceived, even though the European Union legal order was the organizing theme. All are the work of European lawyers or law professors and use a standard form of legal analysis.
The first seven chapters address the question of state liability. Briefly, for those who are unfamiliar with the ECJ, that Court in the FRANCOVICH case (1991) and BRASSERIE DU PECHEUR AND FACTORAME cases (1996) declared that the member nations of the European Union could be sued and found liable for breaches of EU law and, more astoundingly, could be forced to pay damages to the injured parties. The political import of these decisions lies in their significant diminution of state sovereignty, and reaction to them has, not surprisingly, been dramatic. Chapters by Takis Tridimas, W. Van Gerven, Peter Oliver, Piet Eeckhout, Paul Craig, and Mark Hoskins dissect the decisions, trace their implementation in national courts, argue against them, consider them in the context of national legal systems and of the European legal system, isolate their "spillover" effects into national law, and suggest that they create "innominate" or Euro torts. People interested in European law and European politics will find these chapters for assessing some of the debates that are ongoing in the European context.
Chapters 8 and 9, written by Norwegian Eivind Smith and Englishman Ivan Hare respectively, are provocative discussions of the larger question of judicial review and its relationship to democratic principles. They both consider the need for judicial review in conjunction with a written constitution and provide splendid counters to U.S. ethnocentrism about judicial power by citing judicial decisions from Norway, Australia, Britain and South Africa and by tracing the roots of judicial review and its variants. Cross-fertilization is tracked by Smith as views of political and legal organization traveled from France to the fledgling U.S. and then back across the Atlantic. Both Smith and Hare are fully conversant with developments, both in case law and in legal scholarship, in the U.S. and use them together with European sources to hone their arguments about judicial review, constitutions, legitimacy, sovereignty and majority rule. These two chapters alone justify the price of the book for Americans addressing similar questions.
The final four chapters are more Eurocentric and focus on administrative law and English law. Specialists would undoubtedly find them interesting, but they provide less of a panoramic view of law and politics than other contributions.
If I have a criticism of this collection it is that three quite distinct topics are included and, despite efforts by the editors in their introductory chapter to weave them all together, the last four chapters do not connect with the preceding ones. That is, however, what too often results from edited volumes that began as conference papers. At the same time, the efforts of each of the individual authors to link their chapters to others demonstrates that they were all thoroughly familiar with one anotherís work and that considerable reworking and reconsidering followed their initial presentations in the conference format. However, to repeat my over-riding evaluation of the book, most Americans studying constitutional politics and judicial review, as well as anyone interested in European law, would benefit from the insights contained in this slender volume.