Vol. 7 No. 7 (July 1997) pp. 349-352.

NEW LEGAL DYNAMICS OF EUROPEAN INTEGRATION by Jo Shaw and Gillian More (editors). Oxford: Oxford University Press, 1995. 355 pages. Cloth $70.00. Paper $27.00. ISBN 0-19-825980-8.

Reviewed by Gordon Silverstein, Department of Political Science, The University of Minnesota.
 

Many scholars in the United States have only just recently "discovered" the important role of law and legal institutions in the integration of the European Union. This seems rather strange considering that the European Court of Justice and other legal institutions and actors in Europe have been playing a significant role for some time. One might even argue that European integration has moved faster and with less friction through judicial channels than it has through political channels. Why then is it that many political scientists are only now finding these links?

In their edited volume of essays on the intersection of law and political science in the study of European integration, Jo Shaw and Gillian More suggest that this apparent anomaly is explained in part by the bifurcation of the study of law in Europe and the study of European political integration. In a direct and very readable introductory essay, Jo Shaw places a large measure of blame for this bifurcation on the artificial split between academic lawyers and political science. Academic lawyers, she suggests, have set and driven the agenda on the study of European law, paying scant attention to political science. Similarly, political scientists with an interest in European integration generally have come from the international relations sub-discipline, and have only just begun to pay attention to legal actors, institutions and norms as important parts of the European integration puzzle. The Shaw and More volume is explicitly designed to demonstrate the need to bridge the gap they perceive between these two disciplines, and to do so by joining some of the tools of legal scholarship including sociolegal studies, postmodernist theory, and critical legal studies, among others, with the theories of regional integration that are derived from "comparative politics, international relations, public policy analysis and theories of institutional behavior." (p. 2) Their goal is to urge the development of what they call European Union legal studies.

To start on this ambitious task, the editors have assembled 15 essays written by young European scholars, each of which is a strong contribution. But the essays are designed to fit together in more than one way, and therein lies some confusion. In her introduction, Shaw suggests at least two ways to categorize these essays -- a substantive organization starting with constitutionalism, then turning to questions of ideology and policymaking, and then to questions of institutionalism. But Shaw also suggests a second way of looking at this collection, dividing the essays into those grounded in legal scholarship, those grounded in political science and those that seek to integrate the two traditions. Tying these broad categorizations together are the first and last essays, which, Shaw argues, suggest "two (not necessarily mutually exclusive) ways forward for legal scholars working in the field of European integration." (p. 13).

The first and last essays are among the strongest in this volume, largely because they most clearly accomplish the integrationist approach called for by the editors. In the first essay, "Identity and Difference: The European Union and Postmodernism, Ian Ward surveys the literature on post-modernism and suggests that in some ways, particularly in its lack of a clear sense of particularity of identity, "the European Union appears to be an archetypal postmodern polity." (p. 26) Ward argues that a European constitution and a European jurisprudence "will be a postmodern jurisprudence," and, indeed, "the only postmodern jurisprudence to date" (p27). He suggests that concepts such as subsidiarity and the lack of a clear, specific constitutional text provide a real opportunity, almost a testing ground for postmodern theory: "The new Europe," he concludes, "could evolve as a Europe of pluralism and participatory democracy beyond the nation-state and beyond modernism." (p. 28) This is not an argument that the European Union is the postmodern state, but that there is a potential there, and that this potential is most clearly etched by an analysis that considers constitutionalism and not just politics or law in isolation.

Grainne de Burca follows Ward and examines "The Language of Rights and European Integration," arguing that the evolution of rights in the European Union has been driven largely by legal actors and institutions. This language of rights, she argues, serves a legitimating and integrating function. But those functions, which traditional views of constitutionalism might predict, must be viewed carefully, since some lessons of political science and of postmodern theory in particular suggest ways in which a language of rights might actually undermine democratic participation and serve as a disintegrating or divisive force as well. de Burca’s essay is an articulate warning to examine the evolution of a language of rights in Europe with some measure of skepticism and to realize that the traditional constitutional agenda must be viewed through a politically informed eye.

The third essay in this volume also lays important foundations for the sort of inquiry suggested by the editors. In "The Single Market: From Prima Donna to Journeyman," Damian Chalmers argues that constitutionalism in the European Union came out of a commitment to create a specific set of economic arrangements, but that these were designed to achieve a particular set of liberal values. This system, built on "the ordoliberal tradition of the Freiburg School," (p56) focuses on economic arrangements as the source and means to achieve particular normative ends. The problem, however, is that as courts build upon what is almost purely an economic-constitutional foundation "the language of economic constitutionalism has been more extensively articulated than that of civil and political freedoms." (p. 72) Chalmers’ essay, along with de Burca’s, suggest the need for a line of research on the normative implications of a constitutional system where economic arrangements were supposed to generate normative and ideological ends, rather than a system where normative and ideological arrangements might produce a particular, liberal economic system. Their work reminds us that simply applying a traditional legal analysis of constitutional development, divorced from this broader structure, won’t take us very far toward an understanding of the development of European integration.

In the final essay, "Political Theory, Law and European Union," Daniel Wincott argues that any general description of the integration process in Europe must blend an interpretation of the political as well as the legal institutions of the European Union -- and of the impact these institutions have had on European society. He then reviews the flaws he finds in work driven by an exclusive focus on theories and empirical research from political science, research that has, he argues, largely ignored the role of law and legal institution in Europe. Next he outlines an approach to a history of the European Union that integrates legal and political analysis, concluding that "an interdisciplinary politico-legal approach to European integration needs to take into account the interaction of the institutions of law and politics within the Community." (p. 310).

Between these four essays are a series of well executed and well presented chapters which can be seen within the substantive schema of constitutionalism, ideology and policymaking and institutionalism, as well as within the disciplinary framework of legal approaches, approaches developed from political science and the integration of the two. Unlike the four discussed above, however, the bulk of these essays focus more on particular aspects and cases. And while cumulatively they add to the general integrative objective of the edited volume, individually they tend to hew closer to the more traditional categories the book seeks to jettison.

The first category of essays is clearly grounded in legal scholarship, but not in the traditional approach to legal scholarship with its focus on doctrine, but instead on areas that have really only been developed since the early 1970s, including sociolegal studies, critical legal studies, the law and economics movement and legal theory that is heavily driven by post-modernist approaches and insights.

Within this category, the book offers six essays, ranging from Ian Ward’s focus on post-modernism and Grainne de Burca’s essay on the language of rights, to far narrower essays focusing on litigation strategy ( Catherine Barnard’s "A European Litigation Strategy: the Case of the Equal Opportunities Commission"), the role of taxation in the European Union (Peter Crowther’s "The Court of Justice: Taking Taxes Seriously?) and Tamara Hervey’s essay on "Migrant Workers and their Families in the European Union: the Pervasive Market Ideology of Community Law."

The second category is more explicitly drawn from political science and other disciplines that have contributed to the broad field of European Studies. Here the focus is on policy and ideology and how these interact with law. Within this category, the book offers seven essays, again ranging from broad approaches with a focus on theory to narrower case studies applying and testing some of these theoretical assumptions. While Damian Chalmers, Elaine Whiteford ("W(h)ither Social Policy?") and Imelda Maher ("Legislative Review by the EC Commission: Revision without Radicalism") lean toward more general considerations of the broader issues of European studies, the other essays in this category are far more specific treatments of particular case studies including Leo Flynn’s essay on telecommunications, Colin Scott’s essay on institutional explanations for patterns of law and policy in the regulation of European utilities, Joanne Scott’s essay on the gap between Community law and the General Agreement on Tariffs and Trade (GATT), and Gillian More’s essay on the acquired rights directive and its impact on labor markets in Europe.

The third category then tries to bridge the remaining gap between the first and second categories, with essays that seek to blend legal, political, and institutional explanations of the pattern of European integration. Here is the category that really lies at the heart of this edited volume. Here, Shaw argues in the introduction, "it becomes evident that the analysis of institutions within the broad framework of comparative politics and public policy, and in particular, theories of `new institutionalism’ might currently offer the most fertile ground for understanding the roles of the respective actors within the legal and political processes." (p5) Here the introduction itself as well as Kenneth Armstrong’s essay on "Regulating the free movement of good: institutions and institutional change," and the final essay in the volume, Daniel Wincott’s closing essay strives to achieve the sort of synthesis the volume was designed to elicit.

Individually these are strong essays, but the fact that the editors have not firmly grouped them and instead invite the reader "to read both forwards and backwards through the essays in order to appreciate the different interdisciplinary dynamics which the contributions bring to bear" is both a strength and a weakness. For a project designed to encourage an interdisciplinary approach, it is appealing to leave it open-textured, but at the same time, it allows many of the essays to drift back to their natural habitat, whether than be from the legal approach or the policy-approach or otherwise, rather than keeping the focus tightly on the objective of an integrated approach.

Overall this is a very useful volume and one that has something to offer any number of different readers. One does come away convinced of the need for a greater integration of these traditional approaches along with more modern theoretical approaches. The more detailed, more case-specific essays are valuable contributions, but the general thrust of the volume as a whole might have been more strongly reinforced had the emphasis focused on the last of the three categories, perhaps including fewer essays at slightly greater length. The volume is a solid place to start considering the integration of the study of legal institutions within political science, both for what it can teach us about the integration of the European Union and about political integration more generally.


Copyright 1997