Vol. 13 No. 6 (June 2003)
JUSTICE CONTAINED: LAW AND POLITICS IN THE EUROPEAN UNION by Lisa Conant. Ithaca, NY: Cornell University Press, 2002. 250 pp. Cloth $39.95. ISBN: 0-8014-3910-8.
Reviewed by Sally J. Kenney, Professor of Public Affairs and Law, Director, Center on Women and Public Policy, Humphrey Institute of Public Affairs, University of Minnesota. Email: skenney@hhh.umn.edu .
Lisa Conant has written a wonderful book, JUSTICE CONTAINED: LAW AND POLITICS IN THE EUROPEAN UNION, which I recommend to scholars in the fields of public law, European politics, comparative law, and public policy. In the law and society tradition of looking at not merely “law on the books” but “law in action,” Conant traces the policy impact of the European Court of Justice’s rulings in four separate doctrinal areas: regulation of the electricity sector, regulation of telecommunications, national discrimination in public-sector employment, and discrimination in access to social benefits for EU non-nationals. She has chosen her cases well for variation across the most important variables of her analysis, saliency of member state interests and interest group mobilization, but also spanning both competition and social policy. Conant supplements her case analysis with 96 interviews of Eurocrats and members of NGOs, using evidence mainly from Germany, the United Kingdom, and France. JUSTICE CONTAINED is both concise and readable with clear repeated summaries of the argument, making it suitable for adoption in many courses.
Tracing the policy impact of the European Court of Justice’s rulings is no easy feat. National courts that suspect European law may apply in a case before them suspend their proceedings and request a preliminary ruling from the ECJ. After a long delay, the ECJ answers (or evades) the national court’s questions and issues its judgment for the national court to apply in the particular case. Thus, reading the judgments of the ECJ in a given area of law reveals only part of the story. To trace the policy impact, researchers must read the national court’s opinion (unlike the ECJ’s judgments, these are not available in many languages), as well as determine what happened to the parties after the national court ruled. In my own small corner of this massive field, sex discrimination in employment, I observed how easy it is for English courts to drag their feet to implement a prohibition against pregnancy discrimination. In another case in Northern Ireland about the exclusion of women from police work, a partial victory in the ECJ translated into a much more powerful victory on the ground. The moral is that not only is it hard to tell much about actual policy impact from the ECJ’s judgments alone, but scholars such as myself have also been rightly cautious to generalize beyond our narrow doctrinal areas, let alone across member states. Conant’s study design, however, permits her to make broader generalizations about policy impact both across doctrinal areas and across member states, while still recognizing the limitations of her sample.
Theoretically, Conant sets her sights on international relations scholars who have argued that the European Union is merely an arena whereby states can pursue their interests. Nor, she argues, is the opposite view of an all-powerful ECJ that trammels member states’ sovereignty correct. Conant carefully documents the many ways the structure of the EU and the ECJ’s rulings make it easy for member states to evade the full force of the law. Rather than seeing the European Court of Justice as “gouvernement des juges,” a potential threat to democracy, Conant convincingly argues, like Gerald Rosenberg before her, that it is not so much the simple fact of the court’s ruling that produces policy change but whether, how, and the extent to which individual litigants and groups mobilize to make a legal victory a policy reality. Just as Rosenberg argues that it was the federal government’s decision to condition school aid to states on desegregation that produced change, Conant highlights the pivotal role of the Commission in pushing member states to implement policies, forcing negotiation, and developing favorable case law. Her analysis broadens the discussion beyond the unduly narrow question of simply why nations obey to include the mechanisms for translating legal decree into policy change—the support of organized societal actors and public institutional actors. Only by understanding variations in legal mobilization can we understand the differences in public policy impact. Courts may sometimes hand victory to litigants who could not prevail through other policy processes. But the ability to translate that victory to a broader class depends on the resources and choices of organized groups.
A common rule in American politics is that to prevail, two branches must ally against a third. The Supreme Court needs the support of at least one other branch to give effect to its rulings. Conant uses the case of telecommunications policy to show how favorable ECJ rulings emboldened the Commission to try to eliminate barriers by issuing directives and individual decisions in favor of open competition. The ECJ then upheld these decisions against member state challenges. But Conant skillfully shows how member states, despite their objection to the Commission’s rule-making in this area, favored liberalization in a number of ways. Prime Minister Thatcher wanted greater competition in this area and fewer state aids. And the French and German governments saw privatization as a way of breaking the traditional lifetime employment rights of civil servants. Managers saw the potential for expansion and cooperation across national boundaries. Member states worked within the Commission rather than flooding the ECJ with lawsuits. Thus, Conant argues, we must understand policy change in telecommunications as stemming not exclusively from bold ECJ rulings, but from the ECJ working in concert with the Commission and organized interests.
The ECJ and Commission were less successful in opening electricity markets to competition. Member state opposition and widespread opposition of interested parties forced major concessions, and the Commission feared further retrenchment if it litigated. Member states flouted EU law that forbade discrimination against non-nationals in public sector employment until the Commission began to prosecute systematically cases across all member states. While member states did little to resist policy changes, without organized societal allies, migrants’ rights were still easily denied in practice. Similarly, despite the ECJ’s clear rulings upholding the rights of resident non-nationals to social benefits, member states have complied with individual decisions, yet avoided reforms and attempted to overrule ECJ decisions legislatively. No powerful institutional allies, not even the Commission, have championed the rights of EU migrants. When faced with hostile member states determined to contain the rising costs of social benefits and lacking powerful institutional allies, the ECJ’s clear statement of their rights provides few tangible benefits for migrants.
As one who teaches the politics of public affairs to Masters Students in Public Policy, I like the way Conant conceptualizes the policy process. First, law, courts, and social movements are part of the equation, a great leap forward from most policy texts. Second, politics and public policy consist of more than policy analysis, preferably done by economists. The EU could easily be thought of as the triumph of the technocrats over democratic decision-making, yet Conant illustrates the important role of groups and grassroots organizations in effectuating policy change through litigation. Moreover, she does not narrow her approach to a pluralist one, but parallels the work of social movement scholars in lamenting the situation of those unrepresented by organized interests. Third, Conant does not succumb to a simplistic typology of policy stages as she traces causal effects throughout the policy process, recognizing instead that no policy issue is ever totally resolved, but merely the current chapter completed.
Yet, while I celebrate Conant’s treatment of the European Court of Justice as a branch of government, properly within the purview of political scientists rather than merely lawyers, and I applaud her concern with how doctrine actually translates into policy change on the ground for litigants and others, her approach to law troubles me. She clearly knows the case law in all of its complexity—she has read the cases and understands them. Yet Conant treats ECJ judgments as mere policy outputs rather than complex texts that determine not just who wins or loses but also the discursive framing of an issue, how we think about the world. Unlike most commentators, for the most part European lawyers steeped in doctrinal exegesis rather than policy analysis (and who maintain a wall between political science and law), Conant expends little energy examining the arguments of the judgments. She does, however, recognize that the ECJ can surprise member states and generate new policy solutions that were not on the table. But all public interest lawyers will tell you that winning is not just about getting a policy outcome, getting reinstated in one’s job, for example, or earning back pay. Winning is about having judges articulate why it is wrong to disadvantage pregnant women employees or criminalize homosexual conduct. That articulation of principle is important in and of itself, not merely because it translates into tangible outcomes, but because it arguably shapes how we conceptualize an issue, how we think about the justness of separate and unequal, for example. Others in Conant’s tradition, such as Alec Stone, recognize at least that the framing of the issue by the Constitutional Court in France shapes the debate in the National Assembly, for example.
How does Conant define justice and containment? She does not, really. On page three, she writes that justice “encompasses the rights and obligations that emerge from ECJ interpretation of the treaties and legislation of the EC.” Containment is when member states are effectively able to prevent litigants from applying a given principle to their case by national courts, or also when they “overrule” the Court by amending the treaties. Conant sees no need to engage the many philosophers who have mulled over the meaning of justice. Cases have right answers, and, most importantly, those answers are absolute. But the reason many policy analysts have decried the judicialization of politics is precisely because good public policy does not always entail effectuating an absolute right or entitlement but balancing competing needs and interests against individual rights. Should special education students automatically have whatever they need as a matter of right, while other students do without? Should kidney patients have unlimited resources, while those with other debilitating diseases go without treatment? Should states have to build prisons to a certain level if it means closing other services? Should free speech that incites racial hatred be protected?
Conant begins with a simple landmark case, CASSIS DI DIJON, which established the right of mutual recognition, through a stroke of the pen, making good on the Treaty of Rome’s aspiration of free movement of goods. She rightly identifies the ways in which the ECJ often creates exceptions to its broad general principles by carefully reviewing the landmark cases as well as the cases in her specific four areas. Commentators in many fields, including myself in employment discrimination, have long criticized the “glass half full” quality of ECJ “victories.” As do Acks, Haltom, and McCann in their work on “Symbolic Stella,” (the woman burned by McDonald’s coffee), Conant draws our attention to what litigants actually win on the ground rather than what one court may have awarded at one time or said in a judgment. We can all agree it is a Pyrrhic victory to win a bold principle in the text if schools are never integrated, pregnant women retained, or part-time workers paid the same as full-time workers. But does justice require absolute principles applied without exception? Or does it sometimes require balancing, or in EU parlance, proportionality? Is anything short of the absolute containment? Conant is clearly on to something—the qualification of broad general principles is often a selling short, a form of containment. The promise of the treaties and the ECJ’s judgments do often go unfulfilled on the ground. But, for example, when the ECJ decides that its prohibition against pregnancy discrimination does not extend to women who have abnormal medical complications resulting from childbirth, is that containment or merely a balancing of the costs to employers with the rights of pregnant women?
Those steeped in American constitutional law and theory rather than European Union policy might also be taken aback by the cavalier way that Conant deals with the issue of the intent of the framers—in this case, the drafters of the treaties (or subsequent laws). While it is probably safe to say that, if we were to interview the drafters of the Treaty of Rome from beyond the grave and ask them whether they thought the European Court of Justice would elevate the right of equal pay to a fundamental right, they would most likely say “no.” On the other hand, they did include, and member states ratified, Article 119, even if member states and litigants chose to ignore it for years. Member state intent is also a problematic concept for those of us outside of international relations who do not automatically see states as singular rational actors. Does the U.K. have a monolithic interest perceived identically by Tony Blair and Margaret Thatcher? Or is the definition of the national interest almost always contested terrain, with many national and regional interests competing for national governmental support of their positions? One need not have had much of one’s training from Walter Murphy to notice that this approach to the “intent of the framers” has problems. Were all the drafters of the treaties of one mind? Were not some craftier than others, more vigilant than others, intending to open the door to the latent possibilities of social and political, not just economic integration? Were ratifying member states duped? Have the judges of the ECJ really been so unfaithful to the text, or have they merely held member states to their agreements, surprised as member states may have been that they had made such a contract? The point is a minor one, and it in no way detracts from Conant’s contribution. I am delighted that Conant has brought an analysis of courts and social movements into thinking about public policy, but I would still call for a more nuanced appreciation of some of the distinctiveness of law and courts.
While no competent observer of the European Union would fail to note the significant role of the ECJ as a policy player, too often in political science in both Europe and the United States, courts are bracketed from discussions about politics and policy making and relegated to specialized courses. One of Conant’s many contributions has been placing courts back as arenas and players. Moreover, Conant’s work should nudge those focused exclusively on the ECJ to recognize that paper rights mean little without people willing to demand them in both political and legal arenas. Her thorough, yet parsimonious work is a great addition to the field.
REFERENCES:
Aks, Judith, William Haltom, and Michael McCann. 1997. "Symbolic Stella: On Media
Coverage of Personal Injury Litigation and the Production of Legal Knowledge," LAW, COURTS, AND JUDICIAL PROCESS NEWSLETTER (Summer 1997, pp.5-7).
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
CASE REFERENCES:
CASSIS DE DIJON (Case 120/78 REWE-ZENTRALE AG v. BUNDESMONOPOLVERWALTUNG FźR BRANNTWEIN [1979] ECR 649).
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Copyright 2003 by the author, Sally J. Kenney.