The EU and law in context: the context

Abstract

It is widely acknowledged that the contextual study of European Community law, later European Union law, has contributed to a richer understanding of EC/EU law. This review proposes a contextual reconstruction and analysis of EC/EU law in context, or what is the same, it considers the institutions, milieus and debates which fostered the analysis and assessment of EC and EU law as ‘an intricate web of politics, economics and law’, at the same time that facilitated the development of critical self-consciousness about the underlying assumptions that scholars (including contextual scholars) bring to their study of law. This is done by engaging with the work of Francis Snyder, and in particular, with his groundbreaking collection “New Directions in European Community law”.

1. A new approach

In 1987, 15 years after the United Kingdom (UK) signed up to the European Community (EC) – realistically perhaps to the Common Market¹ – Francis Snyder published an article asking for ‘new directions’ in the teaching and study of EC law. His complaint was the dryness of EC law studies. EC law had ‘often been regarded (and taught) simply as a highly technical set of rules, a dense doctrinal thicket into which only the ignorant or the foolish would “jump in and scratch out their eyes”, still less try to understand in terms of social theories of law.’² It had in this respect been to some extent ‘incorporated into the textbook tradition of English law’,³ a development Snyder attributed to the fact that EC law had been taught in the UK by ‘a handful of specialists’, most of whom had begun their careers as legal secretaries at the European Court of Justice (ECJ). The outcome had been a markedly uncritical stance and a narrow focus in teaching and legal literature on the Court and its case law.⁴

Snyder was writing about the UK, where he was teaching at Warwick Law School, founded in 1967 with a law in context agenda and an evolving record for its contextual approach to legal education. Legal positivism and a narrow focus on doctrine and the jurisprudence of the superior courts are not confined to the UK, however, and very similar criticism could have been levelled at EC legal studies more widely. In the formative period of EC law, the infant institutions were left much to their own devices without the guidance of a constitution in fleshing out their roles. EC lawyers were largely receptive of integrationist doctrine and concerned at the same time to shelter the ECJ from accusations of playing politics in embedding integrationism in the case law. Indeed, Martin Shapiro, an American observer with law and/political science qualifications, famously described EC constitutional law as ‘constitutional law without the politics’. Shapiro attacked the presentation of the EC as:

a juristic idea; the written constitution as a sacred text; the professional commentary as a legal truth; the case law as the inevitable working out of the correct implications of the constitutional text; and the constitutional court as the disembodied voice of right reason and constitutional teleology.⁵

This contribution tells us much about the source of ideas about need for change of direction in EC legal studies.

Shapiro asked questions too about the legal community in which these attitudes had developed. An empirical survey made some years later showed just how homogeneous the legal coterie was. The majority of those writing on law in major EC journals had close links with one or more of the EC institutions. Their conception of law and what law can and should do was widely shared. They were mainly integrationist in persuasion, identifying with the project of European integration both intellectually and socially, with a tendency ‘to rally as one around the Court in its patient creation of a genuine supreme legal order’.⁶

Snyder was not a member of this coterie and his legal predilections were internationalist, pluralist and interdisciplinary. Here his credentials were formidable. After graduating from Yale, he had completed postgraduate studies in law at Harvard and at the Institut d’Etudes Politiques in Paris but also had substantial publications on African politics to his credit.⁷ At the time of writing, Snyder was teaching at Warwick Law School, noted, as already indicated, for its commitment to law in context.

Snyder’s take on EC law was as ‘an intricate web of politics, economics and law’ that called out to be studied and understood by ‘a political economy of law or an interdisciplinary, contextual or critical approach.’⁸ Without jettisoning the established tradition of ‘highly sophisticated scholarship concerning legal doctrine’ in fields such as institutions, procedures and competition law, Snyder demanded innovation in the teaching and study of EC law. In the study of institutions and processes, for example, scholars should branch out to study other institutions than courts and utilise the theoretical insights and findings of other social sciences. They should bear in mind that economic law extends outside competition and look outside the EC to the world economy, evaluating the place and importance of the EC in the global economy.⁹

Snyder’s own work was illustrative. He had been working for some time on the Common Agricultural Policy,¹⁰ on which much of the argument in ‘New Directions’ is based, and which later formed the basis for a study of EC lawmaking intended for anthropologists and first published in a book about the anthropology of law.¹¹ In this study, Snyder advanced the thesis that conceptions of ‘interests’ and ‘interest representation’ underlie any study of law in society, serving as analytical tools for understanding legal ideas, institutions, and processes, and helping to define the salient features of law’s social context. Conceptions of interest also ‘underpin any analysis of law that is not solely doctrinal and that considers law to be integral to social and economic relations. Thus they are indispensable to any understanding of the causes and consequences of the creation, reproduction, or transformation of law.’¹²

Snyder challenged legal scholars ‘to make explicit the underlying assumptions about law, the state and society which as teachers and students we bring to EC law’. Somewhat audaciously he maintained that ‘the general principles on which the EC was founded and which are consecrated in its basic legal texts, ‘appear. .. merely to restate in legal language and in treaty form the underlying assumptions of contemporary capitalist economies’.¹³ The EC was ‘inherently neo-colonial’ – ‘acting for the rich and north in its manifold relations with the poor and south’.¹⁴ To summarise, Snyder asked for a new agenda suggesting that EC law was in need both of ‘a social theory of law’ and studies from the ‘perspective of critical theory’.

2. Critical legal studies: the United States

Snyder was tapping into an approach fast becoming fashionable in anglophone legal studies. Prior to the 1960s, mainstream legal thinking in the anglophone world can be summarised as predominately formalist, though moderated in the United States (USA), where critical legal studies originate, by the well-established influence of American realism. The celebrated account by Morton Horwitz of the crisis and transformation of ‘legal orthodoxy’ in the years between 1870 and 1960 contains only one reference to critical legal studies, which Horwitz regards as a ‘revival and extension’ of American realism, emerging as a post-1960s critique of a contemporary revival of ‘neutral principles’ theory.¹⁵ Horwitz is not an admirer of neutral principles doctrine, which he castigates as ‘one more effort to separate law and politics in American culture’, serving similar dogmatic and legitimating functions to ‘religious authority’. Ensuing ‘abstract jurisprudential controversies’ had ‘misled’ generations of legal thinkers, so that legal theories, ‘developed out of the exigencies of particular politics and moral struggles’, had come to stand as ‘universal truths good for all time’.¹⁶

By the time Snyder wrote, the two closely linked movements of critical legal studies and social theories of law were strongly represented in American legal literature. In the USA, where the critical legal studies movement started, David Trubek opened a study of social theory in 1972 by boldly declaring that the implicit, a priori conclusions about the role of law were no longer valid; we must turn instead to ‘systematic efforts to understand the relationships among the legal, social, economic, and political orders’.¹⁷ This he himself undertook at an exalted, theoretical level in a long article on critical social thought in law, significantly published in the infant Law and Society Review, founded in 1966. Basing his thesis on a detailed Marxist analysis by Isaac Balbus of the operation of the criminal justice system in three American cities during ghetto riots in the 1960s,¹⁸ Trubek praised the book’s combination of quantitative analysis with Marxist explanations of the data, which he acclaimed as a unique and noteworthy contribution to the sociology of law.¹⁹ Elsewhere, Robert Unger identified two main approaches in critical legal studies. The first (in common with social theory) treated doctrine as the expression of a particular vision of society and emphasised the contradictory and manipulable character of doctrinal argument. The second took as its point of departure the idea that law and legal doctrine ‘reflect, confirm, and reshape the social divisions and hierarchies inherent in a type or stage of social organization such as “capitalism”’.²⁰ These closely resemble the points made by Snyder in respect of EC legal studies.

More accessible to the public at large was a set of essays on the politics of law edited by David Kairys. The presentation of law and judicial decision-making as autonomous in the sense of separate from politics, and impersonal was, Kairys wrote, a picture of ‘government by law, not people’ separate from or ‘above’ politics, economics, culture, or the values or preferences of judges’.²¹ Kairys repudiated this ‘popular perception’ of the judicial process and claimed on behalf of the collection to be presenting or at least aiming for ‘a progressive, critical analysis of the operation and social role of the law in contemporary American society’.²² Kairys himself fired well-aimed shots at ‘the language of legal discourse and mystique of legal reasoning’, arguing that they served a primarily ideological purpose, with outcomes determined by social and political judgment; ‘law is simply politics by other means’.²³ Essays on a wide variety of legal subjects were contributed by legal practitioners and academics but using methods drawn from sociology, economics, political science and law. This was something like the approach that Snyder was hoping for.

3. Follow my leader: the UK

In the UK, where realism had not taken root, formalism and legal positivism were more firmly entrenched. The task of the judge was presented as ‘wholly analytical – to discover the previously existing law, and to apply it logically to the case before the court’.²⁴ British judges did not consider policy questions – at least, not openly. And Terence Daintith, embarking some years later on a legal analysis of economic policy, referred to ‘wide acceptance’ in both academic and practitioner circles of the idea that:

the writer on public law matters should deliberately distance himself from the hurly-burly of economic events and political action and conflict, and should draw a picture of constitutional and administrative law which is purified of non-legal, short-run influences.. .. In the result, the mainstream of British writing by lawyers about the constitution analyses constitutional principles and structures largely to the exclusion of any consideration of the activities in which the organs of government are engaged or the purposes with which they pursue them.²⁵

In fact, by the time Daintith wrote, the influence of legal positivism was on the wane. The first number of the British Journal of Law and Society appeared in 1974 and Phil Thomas, its pioneering editor, traced the study of law in society back to 19th-century European sources: Durkheim, Marx and Weber and, in England, Maine and perhaps more surprisingly, Dicey.²⁶ The new journal aimed ‘to follow this tradition of transcending disciplinary boundaries by taking as its focus the subject area of law in society’.²⁷ Nonetheless, Tony Prosser, in an important article in a later issue, still found it appropriate to express dissatisfaction with the traditional common law style of public law writing, ‘composed exhaustively of rules which pass formal tests of legal validity’.²⁸ This positivist conception of law, Prosser noted, was closely linked to liberal-capitalism – a point made by Snyder in connection with EC law. Like Snyder, Prosser rejected the ‘neutral principles’ approach as ‘no longer an appropriate means of conceptualising Western societies’.²⁹ He once more argued for a new, critical theory of public law, which ‘should not only describe and explain the operation of state institutions but should also provide the means for an effective critique of them and point the way for their future development’.³⁰

In other areas of law, this development was well under way. A year later, in a survey of the field, Harris listed much legal scholarship in sociology, social policy and social administration, referring once again to dissatisfaction amongst younger scholars with the traditional style of legal studies. He thought the rise of interest in the study of law in society and sociology of law, though less in economics, political science and other related disciplines, to be consequential.³¹ The Law in Context series of legal books was started in 1970 as a vehicle for works that treated law and legal phenomena ‘critically in their cultural, social, political, technological, environmental and economics contexts’ and broadly, using materials and methods from ‘any other discipline that helps to explain the operation in practice of the particular legal field or legal phenomena under investigation’.³² This was precisely the approach that Snyder had practised and advocated, and in 1990 he published New Directions in European Community Law, a republication including his earlier work on the Common Agricultural Policy, as the first Law in Context study of EC law.³³ In the same series, Ian Ward published A Critical Introduction to European Law in 1996, designed as an examination of EU law in its economic, philosophical, historical and political contexts.

4. The EC: a new look

Amongst Anglophone EC scholars, the plea for ‘new directions’ met an enthusiastic response. The editors of New Legal Dynamics, a set of ‘new look’ essays published in 1996,³⁴ presented it as ‘part of a trend towards broadening the focus of legal scholarship in the field of European integration’ and marking ‘the first tentative steps towards the articulation of a new voice for European legal studies’.³⁵ Scholars would add the tools of interdisciplinary scholarship: comparative politics, international relations, public policy analysis, theories of institutional behaviour, etc – to the tools of legal scholarship, defined in ‘New Directions’ terms to include socio-legal studies, postmodernist theory, critical legal studies, law in context, and so on.

New Legal Dynamics epitomised the Law in Context approach. It comprised a mix of theoretical essays with single sector studies by specialist legal authors of EU policy areas, ranging from the familiar Single Market and workers’ rights to the less-well-known topics of EU citizenship, administrative law and public interest litigation and external affairs (relationship with the General Agreement on Tariffs and Trade – GATT). It was, however, only marginally interdisciplinary. Problems of interdisciplinary cooperation were highlighted some years later when Kenneth Armstrong suggested that even if political science had discovered the ECJ, it had not discovered law. He attempted to remedy the deficiency in an article that set out ‘to integrate the legal dimension into the core of the interdisciplinary network which characterizes European studies’, published in a Special Issue of the prestigious Journal of Common Market Studies. Armstrong’s contribution was a substantial exploration of different images of law and courts in political science and legal literature with a view to conceptualising the role of law in European integration.³⁶ His focus was on the ECJ but, rather than providing a conventional analysis of the case law, the article is a serious attempt to link law and its institutions with the political science concepts of intergovernmentalism, neofunctionalism and constitutionalism, while also exploring the relationship between law and governance.

Looking back to antecedents, Jo Shaw set out in her ‘Introduction’ to draw together the main elements of the new approach around the theme of integration. Snyder’s contextual work received a mention, while the empirical studies by Burley/Slaughter and Mattli stressed the growing influence of American socio-legal work.³⁷ Special mention was made of the transformational constitutional writing of Joseph Weiler. Weiler would remark of the law in context approach that it was the new orthodoxy – ‘of course de rigueur’ – but described his own general approach as ‘hardly one of law in context; it exemplifies a “pure” theory of law, with the rider that law is much wider than doctrine and norms and that the very dichotomy of law and politics is questionable’.³⁸ It is nevertheless appropriate to claim Weiler as a law in context writer and certainly as a critical legal scholar. His polymathic scholarship and rounded scholarly writings dip deeply into the politics and ‘geology’ of EU law and its institutions. Weiler is, moreover a founding editor of the European Journal of International Law, a journal with a specifically European focus, an important concern of which was to explore the ‘central role which the Community is assuming in the GATT or the North–South dialogue, through instruments such as the successive Lomé conventions, and in the East–West dialogue, exemplified by the role it has taken in coordinating aid to Eastern Europe’.³⁹ Suggestively, the very first article, entitled ‘The Politics of Law’,⁴⁰ was contributed by Martti Koskenniemi, a distinguished international lawyer and diplomat well known for his critical approach to international law. These are hardly the symbols of classical legal formalism.

The first full-blooded demolition job on the Court’s federalising tendencies and integrationist ideology did not come until 1986;⁴¹ its author, Hjalte Rasmussen, received a trouncing from mainstream EC lawyers, outraged by the idea that the law/politics boundary had been crossed.⁴² Reviewing it, Harm Schepel observed that this was only natural; the law/politics distinction was central nor only to the Court’s legitimacy but also to ‘the whole project of European integration’. Looking back from the millennium year, Schepel was able to point to a body of interdisciplinary research to prove his point that lawyers were starting to look outside studies of rules and principles for full explanations of the legal integration process, while social scientists were beginning to integrate the Court and its constitutionalising case law into their work. ‘Integrationist orthodoxy was no longer the only accepted discourse in legal academia’. Criticising the Court had become ‘the trend’.⁴³

This brief review of law in context scholarship in European law has been largely a historical survey, which ends with the founding of the European Law Journal (ELJ). The ELJ appeared on the scene in 1995 specifically as a ‘Review of the Law in Context’ with Francis Snyder as Founding Editor-in-Chief,⁴⁴ a prestigious international and interdisciplinary advisory Board, useful links to the Commission and considerable input from the European University Institute. Its remit was ‘to express and develop the study and understanding of European law in its social, cultural, political and economic contexts’.⁴⁵ The first issue began as the editors hoped to go on. Two economists, a sociologist and a political scientist wrote for the first two issues, which contained sector-specific studies of social policy, labour law and EU governance. Significantly, there were not and never have been any case notes.

In some ways, the ELJ might be seen as Francis Snyder’s chief and longest-lasting contribution to European legal scholarship, but he has made many others. He was the first to urge European legal scholars to abandon the safe areas of competition and labour law and to provide sector-specific studies of less accessible areas. He has encouraged cultural pluralism and with the International Workshops for Young Scholars (WISH), provided a platform for young scholars to publish on innovative topics such as food security, law and religion, and many others. In his own work, he provided the model for law in context and interdisciplinary studies. The legacy has proved to be enduring. As I write, an email has pinged into my inbox announcing the imminent publication of a new textbook.⁴⁶ European Union Law in Context claims to provide ‘an explanatory and contextual view of EU law and its impact in a simple and easily accessible yet analytical manner’. It is to illustrate the power struggles behind a given EU law act, to allow for full understanding of how it developed, so as to encourage an understanding of EU law as a force in the increasingly globalised world, rather than as technical and doctrinal subject. In short, a law in context study.