Building a European Law State: Rule through Law in the European Union

• In Event: Governing without Max Weber: Legal, Security, and Single-Market Power in the EU

Abstract

Scholars have long debated the European Court of Justice’s (ECJ) role in propelling European integration: “the judicial construction of Europe.” Yet we know far less about the politics surrounding the institutional expansion of the European Union (EU) legal order itself: “the construction of the European judiciary.” When the EU judiciary was established, it comprised a single little-known court with a temporary lease in Luxembourg; it was composed of seven lonely judges assisted by a handful of staff members; it struggled to forge ties with national judges and to appeal to civil society. Today, the ECJ sits atop an expansive judicial order, with dozens of EU judges and thousands of staff, and a network of national judges interspersed across member states applying EU law in the disputes before them. How do we make sense of this remarkable institutional development – as well as its limits? Applying insights from the literatures on state building and historical institutionalism, we propose a comparative theory of law and political development to analyze the construction of the European judiciary. We conceptualize the EU as a “law state” – an unbalanced polity that lacks coercive and administrative capacity and governs primarily through an expansive network of judicial institutions. In law states like the Holy Roman Empire, the antebellum US, or the contemporary EU, central political elites neither wield courts to tie their own hands (rule of law) nor as instruments of repression (rule by law). Rather, law states illuminate a third pattern of political development – “rule through law” – wherein political elites expand judicial institutions to cultivate social support, accrue infrastructural power, and govern without coercion. Our theoretical framework sheds new light on the distinctive strengths and vulnerabilities of polities that – like the EU – govern primarily through law and courts.

Authors

• Tommaso Pavone, University of Toronto

• R. Daniel Kelemen, Georgetown University