Law and Political Development
Students of political development often privilege the study of power over the study of law. As Charles Tilly reminds us, “the central, tragic fact is simple: coercion works,” for, as Francis Fukuyama adds, predation “arise[s] naturally out of people’s basic predatory instincts.” Yet raw power has its limits. As “state-in-society” theorists have shown, state-builders need social buy-in, and society’s “constant, overwhelming, and universal need for law, justice, and peace” often precedes (in time and salience) demand for extraction and security-via-coercion. Thus medieval England and France developed multi-level court systems well before they developed military bureaucracies. Coercion may also be infeasible, particularly when state-builders confront a landscape crowded with pre-existing polities claiming the monopoly over the use of force. “Coming-together” federations like Switzerland and the US were forged as states agreed to common ‘higher’ rules even as they resisted centralizing coercion. Law often precedes and constitutes power.
The European Union (EU) is the world’s leading exemplar of a polity forged via a “law first” approach. What the EU lacks in military and administrative prowess – think of its non-existent army and tiny bureaucracy – is made up by a federal legal order in all but name. What can the construction of the EU’s legal order teach us about political development? Drawing on ongoing research with R. Daniel Kelemen, my new book, and recent studies of European legal integration, the puzzle of how “Europe [became] nowhere so real as in the field of law” emerges as a story of institutional actors resisting change even when it would bolster their power. And it is also a story of private actors’ bottom-up struggles to erode these resistances, of lawyers who labored to reform national judiciaries and build Europe’s capacity to govern through law.
The turn to law in Europe was born not out of grand ambition, but out of pragmatism. Let us travel back to the 1950s during the Treaty of Rome negotiations that established the European Community. Despite fresh memories of interstate war, governments were clear that they would not easily relinquish sovereignty – let alone their core state functions. A Franco-German plan for a European army and defense community had collapsed amidst mutual suspicions, torpedoing Italy’s hopes for political community and making taboos of the words “federal” and “supranational.” What was in plentiful supply was a renewed commitment to constitutionalism, particularly in Germany and Italy where political elites sought to avoid a relapse to authoritarianism. Law was in the air, and so were lawyers.
As governments wrestled over the design of the European Community’s political institutions, a group of jurists were given substantial leeway to design what would become the fulcrum of the EU’s “infrastructural power:” a transnational multi-level judiciary. They were aware that national governments would not accept displacing state judiciaries – neither with an American-style system of federal courts, nor by having federal judges ride circuit or assume permanent posts in local courts, as in medieval England and France. So as R. Daniel Kelemen and I have argued, they turned to an incrementalist strategy that historical institutionalists describe as “layering” and “conversion.” They designed a single supreme court – the European Court of Justice (ECJ) – and tasked it with interpreting European rules that would be layered atop national legal orders. These jurists then created a procedure enabling national judges to solicit the ECJ whenever they faced a conflict between national and European law, so that the ECJ could supervise governments and hold them accountable to their treaty obligations. The goal was ingenious: to convert national judges interspersed across the territories of the member states into the eyes and ears of the ECJ, thus forging an expansive network of European courts. Where states dispatched taxman and soldiers, the EU’s on-the-ground sentinels would be national judges.
As some of these architects of the Treaty of Rome transitioned to the ECJ’s chambers “tucked away in the fairyland Duchy of Luxembourg,” they broadcast a call-to-action to national judiciaries. In two pathbreaking decisions in 1963 and 1964, the Court held that European law trumps conflicting state law and can be directly invoked by national judges, encouraging them to refer cases to Luxembourg. National courts seemed to heed the call, punting a growing stream of cases that the ECJ used to proclaim a “Community based on the rule of law” and dismantle state barriers to the free movement of goods, services, capital, and people.
The Limits of Empowerment: Judges and Resistance to Change
This gets us to a key puzzle posed by the EU’s political development via law: why would national judges play ball? Why would they turn to European law, collaborate with the ECJ, and participate in the construction of a federal, pan-European legal order?
The conventional answer is seductive in its simplicity: national judges did so to bolster their own power. This argument draws on a broader literature on the judicialization of politics and is known as the “judicial empowerment thesis:” it posits that because ordinary judges in continental Europe lacked the power of judicial review, they used European law to claim what national law denied them. By acknowledging the primacy of European law over state law, judges could now review and disapply legislation. By side-stepping their ‘own’ supreme courts for a “second parent” in Luxembourg, judges could even rebel against their superiors. For lower national courts in particular, “this would be heady stuff.” Hence to explain judges’ participation in the construction of Europe, “ruthless egoism does the trick by itself.”
The judicial empowerment thesis echoes state-centric approaches to political development by stressing the autonomy of bureaucratic politics and the self-interest of institutional actors. But like state-centric approaches, judicial empowerment has its limits. The thesis failed to embed judges in pre-existing relations of authority or in society, reasoning teleologically that courts’ affinity for law and their forward-looking self-interest sufficed to change their behavior. But judges were ensconced in judiciaries already up-and-running with entrenched routines, and it is hardly evident that allegiance to a novel set of rules would have been welcomed as costless. Furthermore, unlike legislators or executives, judges cannot act on their own: they depend upon social actors to raise cases before them. Where did national courts’ pro-EU agendas come from? And was their drive for empowerment and change as innate as it was made out to be?
Scratch beneath the surface – visit national courts, gather archival evidence and conduct interviews – and it turns out that national courts were not the self-empowering change entrepreneurs they were made out to be. Like “street-level bureaucrats,” judges were constrained by bureaucratic shackles that I unearth in my new book, The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe.
Drawing on 15 months of fieldwork, over 350 interviews, and geocoded litigation data, I found that national courts broadly resisted empowering themselves with European law, for three reasons. First, most judges received no training in European law well into the 1990s. They ignored the ECJ, confused it with other international courts, and to this day are broadly unsure how to solicit it. You cannot empower yourself with newly layered laws if you do not know what they are! Second, national judges were swamped with cases: to get rid of piles of files, they defaulted to path-dependent habits for speedy adjudication and avoided breakups or routine or time-consuming excursions into creative policymaking. Finally, in more hierarchical judiciaries – such as the French administrative courts – judges faced career pressures to defer to national supreme courts instead of side-stepping them for a ‘second parent’ in Luxembourg. Overworked, undertrained, and pressured to conform, the cumulative result was captured by a despondent judge: “in this bureaucratic silence EU law dies.”
The insight so far is that when fledgling polities lack centralized power, their development hinges on borrowing and incorporating authority from pre-existing institutions. But appealing to the self-interest of those institutions may not be enough to get them to cooperate. If national judges were not innately drawn to serving as agents of Europeanization, who were the catalysts of change?
Europe’s “Private Army:” Lawyers and the Uneven Push for Change
The answer reveals itself if we shift our gaze from judges on the bench to lawyers in the bar – and if we take seriously the capacity of private actors in society to push “state-building from below.”
Free of the bureaucratic shackles afflicting judges and eager to blur the boundaries between civil society, national courts, and European institutions, a rag-tag group of lawyers self-consciously mobilized as Europe’s “private army” within member states. Having survived WWII, these first “Euro-lawyers” were ideationally-driven, mischievous, and resolute in their liberal quest to dismantle national barriers to a federal legal order in Europe. They founded transnational lawyers’ associations to serve as “the legal arsenal… for pan-European combat” and pro-European journals to “provide legitimacy” and publicity to the fledgling ECJ. As one of these Euro-lawyers in Italy confided, “[we] set the fuse, and it exploded, with big booms well into the 1980s!…we weren’t trying to be protagonists – we just happened to be the only actors on the stage!”
By far their most direct and effective – yet hitherto concealed – strategy was going to court. Cloaked in the sheepskin of rights-conscious litigants and activist judges, Euro-lawyers converged upon a modular repertoire of strategic litigation designed to Europeanize national legal orders and convert state judiciaries into European courts of first instance. Drawing on their local knowledge, they sought clients in society willing to break national laws conflicting with European law, occasionally turning to friends or family if a ‘real’ client was unavailable. They then raised these cases before more approachable lower courts, mobilizing their expertise to deliver crash courses in European law and stress the duty and benefits of upholding these new rules. And they propelled national courts to punt cases to the ECJ by subsidizing their labor, ghostwriting the orders of referral that judges lacked the knowledge, time and, often, interest to write themselves.
The impact of these agents of change is striking. Across Italy, France, and Germany, just over a dozen Euro-lawyers cajoled national judges to refer nearly 500 cases to the ECJ – 80% of which exposed possible state violations of European rules. Some 88 courts across 74 cities solicited the European Court for the first time when one of these attorneys showed up, and nearly half of these courts would never refer a case again unless one of these lawyers showed up again. These lawsuits also deeply marked the ECJ’s caselaw: for instance, they prompted the Court to expand rules protecting the free movement of workers, to ban discrimination based on nationality and liberalize state-owned enterprises, and to make states financially liable when they fail to implement EU law.
Beneath the radar, Europe’s political development has substantially rested on the shoulders of enterprising lawyers who encouraged civil society to challenge state policies and who mobilized courts against their own governments. Herein lie the strengths, but also the limits, of the EU’s legal infrastructural power. Hinging as it does on private actors, Europe’s capacity to govern through law developed in a patchwork rooted in broader transformations and inequities in society.
It turns out that Euro-lawyering gained a foothold in some communities while flailing in others. As the first generation of ideational Euro-lawyers was displaced by rising network of corporate “Euro-firms” in the 1990s and 2000s, their repertoire of legal mobilization was instrumentalized to tend to businesses clustered in global cities like Paris, Milan, and Hamburg. Thus in my fieldwork across courthouses in these cities, it was evident that some judges began taking the enforcement of EU competition, taxation, and intellectual property rules for granted precisely because corporate lawyers pushed and habituated them into doing so. In the words of a Parisian judge, as the first Euro-lawyers were “displaced…by a new generation…[today] it’s all about the diffusion of knowledge between these big law firms and the courts…these big firms that are capable of…producing pleadings based on EU law that are much more sophisticated than what judges can do.”
Yet, outside of these corporate hubs and hotspots of judicialized enforcement (see Figure 1), European law tends to fall through the cracks, generating cold spots or “brown areas” in the EU’s infrastructural power. In smaller towns, rural communities, and marginalized economies, lawyers must tend to all sorts of mundane disputes to survive. Unable to specialize in European law or to tap into clients able to fund ambitious lawsuits to the ECJ, most give up or move to global cities and to Brussels – the EU’s informal capital. The consequences for the EU are stark: no Euro-lawyers, no judicial enforcement of European rules. As a group of judges in Marseille confided, “there are certainly business lawyers [elsewhere]… but we don’t see them in court… [so] for the judge, in his everyday, [EU law] remains very far away…it’s because of this that we don’t apply it…it’s not in our DNA to solicit…the European Court…we don’t even know how to do it.”
The insight that emerges is this: far from an overrunning bureaucracy that governs from above, the EU’s legal order was to a great extent forged from below by private actors in society. Lawyers were essential for overcoming the EU’s scant bureaucratic and military power and converting state judiciaries into a network of European law enforcers. The price of this social embeddedness is that the EU’s infrastructural power remains patchworked and uneven. We can also now see the EU’s Achilles’ heel: the extent to which its governance capacity rests on accessible and independent national courts.
Figure 1: Hotspots and coldspots: how national court enforcement of European law clustered in cities where corporate Euro-firms agglomerated, 1964-2013
Back on the Front Lines
How serious are these vulnerabilities for the EU? It was fashionable just a decade or two ago to treat judicial independence in Europe as locked-in and the judicial construction of the EU as “a
self-reinforcing system.” This confidence proved misplaced. As many parts of the world succumbed to a “democratic recession,” Europe cultivated its own authoritarian state-builders – like Viktor Orbán in Hungary and Jarosław Kaczyński in Poland – intent on going after the courts. It is easy to see why. For them, coopting and cowing national judges is not only a means to concentrate executive power. Taking over the courts is also a strategy to destroy the sentinels that undergird the EU’s capacity to govern through law. Judiciaries are once again on the front lines of “lawfare” and nowhere are the stakes clearer than in Europe, as dreams of a political community based on the rule of law are dashed by those luring Europeans back towards the abyss.