The future of EU legal integration is at a significant juncture with the departure of the UK, substantial rule of law challenges, internal and external crises, and an increasingly apathetic multilateral legal order. There is increased recognition amongst EU lawyers, who have historically limited themselves to doctrinal analysis and legal hermeneutics, that methodology plays an essential role in order to understand EU integration and shape its future (van Gestel & Micklitz, 2014). Certain schools now advocate that the future of EU law must become more methodologically grounded to realise its scientific benefits and to broaden the reach of lawyers beyond the doctrinal (Dyevre, Wijtvliet & Lampach, 2019). For example, anthropological and sociological approaches have given us a sense of how various national and international actors use EU law to achieve their goals (Vauchez & De Witte, 2013). Quantitative studies have offered new insights into the practices of courts and the effectiveness of legislative design (Larsson and Naurin, 2016; Larsson et al. 2017).
The question remains though how to connect interdisciplinary approaches to EU law, policy and politics. How should EU law (as an object) be studied?
The EUFutures research network was launched in 2022 in order to answer this question. Sponsored by UACES and the James Madison Charitable Trust from 2022-2025, the network brings together scholars to: reflect on the future methodological direction(s) of EU law and EU integration; to provide methodological training for EU lawyers interested in interdisciplinary study; and to consider both how law could open itself up to methodologies from other disciplines, and what legal analysis could offer political, economic and historical approaches.
As the network coordinators, our personal approach to the study of EU law is in line with the old idea of studying law in context. In EU studies, this idea has been more particularly developed in “integration through law”, for example in the seminal work of Cappelletti, Seccombe and Weiler in the 1980s, a book which paved the way for a large number of publications focusing on the interaction between EU law and the larger system of the European Union, instead of limiting the analysis to legal-technical analyses. This is not to say that legalistic approaches are not important, quite the contrary; but they are not enough to encapsulate the different aspects of EU law. There is added value in both having strong legal doctrinal analyses and going beyond these analyses.
That being said, ‘law in context’ may lead to different types of analyses.
First, it can lead to normative assertions about the law, its flaws, wea/knesses, and deficiencies.
Secondly, and in our view more importantly, ‘law in context’ can be seen as an invitation to do interdisciplinary research, to use different methods deriving not only from law as a discipline, but also from the social sciences more generally.
For a lawyer, one benefit of being opened to other disciplines is that one can use methods that are not typical of one’s own discipline. Another positive aspect is that it allows the researcher to ask questions that are usually considered to fall outside the scope of a legalistic analysis. Thus, legalistic analyses usually answer questions such as: what is positive law in a specific area of European integration? How has it evolved over time? How is EU law interpreted by courts? What is and what is not legal in the EU?
Through multidisciplinarity and interdisciplinarity, other questions can be answered, such as: Why was EU law adopted in the first place? When and why did it change? Is it applied? Is it effective? What is the impact of EU law in the Member States and on society? In our work, we have explored the effect of trade, governance and social rights within this broader context and feel it has been enriched significantly by exploring such debates.
We want to finish this introduction to the network by giving an example of how we have used interdisciplinarity in our research. When studying the Court of Justice of the EU (the Court) and its jurisprudence, many lawyers focus on legal arguments only. Looking at the Court’s interpretations of EU law, they make as if there was one and only one possible interpretation, and it would be the court’s job to find it. This leads to doctrinal analysis where the Court’s rulings are considered either right or wrong. On the contrary, many political scientists act as if legal arguments were not relevant, the Court being a political actor.
Of course, in between those two opposite positions there is room for nuanced analyses, where the Court can be seen as an embedded actor, interacting with other EU players, enjoying a large room of maneuver in a political system where courts’ rulings matter a lot, and legislative override is difficult. But at the same time legal constraints also have to be taken into account. The Court has to frame its judgments based on appropriate legal reasoning, which means its margin of discretion is not without limit.
Through a number of publications – for example individual articles and publications co-authored by one of us as a lawyer with a political scientist – we have used different methods to contribute more nuanced analyses to the large debate in the legal and political science literature over the Court’s judicial activism. The Court of Justice of the European Union and the Politics of Law (Palgrave Macmillan, 2016), by Sabine Saurugger and Fabien Terpan, is a good example of the challenges we wish to pursue more broadly within this research network. As argued in this book, the Court of Justice is an embedded actor and is better understood when considering its interaction with the larger political system of the EU. This type of approach, applied to EU law more generally, will be at the center of our discussions within EUFutures.
The network will be holding its launch workshop on 4 November 2022 at City Law School, University of London. Full details of the programme and how to participate can be found here. More information about the EUFutures project can be found on our website.
For more information and/or to join the network please email eufuturesnetwork@gmail.com or follow us on Twitter @JMTEUFutures.
References
- Cappelletti, Seccombe & Weiler (eds) Integration through law: Europe and the American federal experience (1985).
- Dyevre, Wijtvliet & Lampach, ‘The Future of European Legal Scholarship’ (2019) Maastricht Journal of European and Comparative Law 348.
- Larsson & Naurin, ‘Judicial independence and political uncertainty: How the risk of override affects the Court of Justice of the EU’ (2016) International Organization 377.
- Larsson, Naurin, Derlén & Lindholm, ‘Speaking law to power: The strategic use of precedent of the Court of Justice of the European Union’ (2017) Comparative Political Studies 879.
- Van Gestel & Micklitz, ‘Why Methods Matter in European Legal Scholarship’ (2014) European Law Journal 292.
- Vauchez & De Witte (eds) Lawyering Europe: European law as a transnational social field (2013).
Professor Elaine Fahey, Professor of Law/Jean Monnet Chair in Law & Transatlantic Relations, City, University of London: elaine.fahey.1@city.ac.uk
Dr Fabien Terpan, Senior Lecturer and Jean Monnet Chair in EU Law and Politics, Sciences Po Grenoble-UGA, CESICE: fabien.terpan@sciencespo-grenoble.fr
Dr Rebecca Zahn, Reader in Law, University of Strathclyde: rebecca.zahn@strath.ac.uk
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