THE JUDICIAL CONSTRUCTION OF EUROPE

Vol. 16 No.2 (February 2006), pp.177-178

THE JUDICIAL CONSTRUCTION OF EUROPE, by Alec Stone Sweet. New York, N.Y.; Oxford University Press, 2004. 294pp. Hardback. £58.00/$129.95. ISBN: 0-19-927552-1. Paperback. £19.99/$45.00. ISBN 0-19-927553-X.

Reviewed by Carla Thorson, World Affairs Council of Northern California. Email: cthorson [at] wacsf.org

The recent failure of the European Union’s draft constitution might lead one to conclude that European legal integration really is a myth. Therefore, the theory put forth by Alec Stone Sweet and his colleagues in THE JUDICIAL CONSTRUCTION OF EUROPE, as well as other similar volumes has been disproved. Stone Sweet, however, would certainly disagree. According to his theory of “judicialization,” this is just another hurdle in the long march toward legal integration and European unification. Looking back at the history of this process, from the formation of the European Economic Community through the establishment of the European Union, there have always been critics and skeptics. Yet, despite all the naysayers, the process has steadily proceeded. Indeed, the negative press associated with integration often has had the reverse effect. The failure of constitutional referenda in France and the Netherlands in the summer of 2005 thus is likely to be only a temporary, albeit highly-publicized, setback for European integration—by no means the first and certainly not the last.

Moreover, the deductive theory in this volume that seeks to explain the dynamics of European integration and institutional change does not preclude the possibility of a “no” vote on the EU draft constitution. Rather, Stone Sweet argues that the “constitutionalization” of the Treaty of Rome is a process that can be traced back to 1959. It is a process resting not on a constitution or institutional structure, but on a set of foundational decisions by the European Court of Justice that has gradually established the legal basis for political integration of Europe. If anything, Stone Sweet might argue that the new EU Constitution is a political document, rejected on purely political grounds, while the legal basis for integration remains and continues to evolve without interruption. The judicialization of Europe – i.e. the process of consolidating judicial authority over the institutional evolution of a society – does not depend on the ratification of the EU Constitution, as it is already well underway.

JUDICIAL CONSTRUCTION focuses on the institution which is seen as the driving force of the integration process, the European Court of Justice (ECJ). Using quantitative analysis of aggregate data from the court’s jurisprudence, and qualitative case studies, Stone Sweet first develops and tests a theory of integration. He, with Thomas Brunell, demonstrates the profound effect of the ECJ in shaping supranational governance. Then, with colleagues Margaret McCown, Rachel Cichowski and Markus Gehring, he assesses the impact of the European Court of Justice on the politics of trade, sex equality, and [*178] environmental protection in the European Union; the objective of these case studies being to understand the effects of ECJ case law on policy outcomes and on the policy-relevant behavior of nonjudicial actors. In some areas, particularly trade and gender equality, it is judges not governments, legislatures or Member States that have influenced institutional development.

While the focus of this volume is squarely on an institution, the ECJ, Stone Sweet’s most salient argument is that integration has not proceeded from the institutional design of the court, as others have theorized. Rather he supposes that the ECJ is more like an umbrella under which these market relationships, interactions between national governments, and among legislators or private individuals have evolved. He suggests that the activities of supranational institutions have routinely produced unintended consequences from those envisioned by the designers. The institutional design of the ECJ is not therefore the critical component for integration. For Stone Sweet, European integration is “fundamentally about how a large number of actors, operating in relatively separate arenas, were able to produce new forms of exchange and collective governance for themselves” (p.236). Through its broad zone of discretion, the ECJ has provided the framework for these interactions, but does not dictate the terms so much as it shapes them. This observation sets his argument apart from other work on the European Court of Justice. Stone Sweet and his colleagues present a strong case for the inevitability of European integration—with or without an EU Constitution.

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