The Politics of Intercurrence: Political Cleavages and Lawfare in the EU

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

Abstract

Since the 1990s, the European Union (EU) has grown into a hotbed of legal conflicts. As populist parties, Euroskeptic governments, and national courts challenged the primacy of EU law, EU policymakers and the European Court of Justice (ECJ) pushed for the expansion and enforcement of supranational rules. Although political scientists have pivoted from stressing cooperation and coherence in the EU legal order to probing various ways that EU law has been politicized, we still lack an overarching theory to explain this transformation. Drawing on comparative law and politics research, we develop a theory of “intercurrence” – the conflictual operation of politically-embedded legal orders. We specify the conditions under which legal orders become ensconced in broader political conflicts and illustrate their explanatory purchase using a wide array of empirical examples from within the EU. Our findings suggest that intercurrence unfolds as a three-stage process whereby a disruptive political cleavage emerges, creates a social division that overlaps with different legal orders, and spurs political actors to mobilize one legal order against another via deliberate acts of lawfare.

Authors

• Tommaso Pavone, University of Toronto

• Sivaram Cheruvu, University of Texas at Dallas