Academic journal article Law & Society Review

From Marx to Market: Lawyers, European Law, and the Contentious Transformation of the Port of Genoa

Academic journal article Law & Society Review

From Marx to Market: Lawyers, European Law, and the Contentious Transformation of the Port of Genoa

Article excerpt

Contentious Politics and the Unmasking of Transnational Law

Of all transnational legal orders (Halliday and Shaffer 2015), the European Union (EU) represents an exemplary process of "integration through law" (Kelemen 2011). The conventional view is that the construction of a liberalized common market and a "supranational constitution" (Stone Sweet and Brunell 1998) in Europe can be largely attributed to the "quiet" collaborations of national courts and the European Court of Justice (ECJ). In this view, national courts availed themselves of supranational rules to strike down national laws obstructing competition and trade. At the same time, the ECJ advanced European integration through a jurisprudence cloaked in incrementalism and apolitical legal garb.

In Burley and Mattli's evocative terminology, "law functions both as mask and shield," defining "a purportedly 'neutral' zone in which it is possible to reach outcomes that would be impossible to achieve in the political arena" (Burley and Mattli 1993: 72-73). Miguel Maduro-a former Advocate General at the ECJ-traces how a liberal European "economic constitution" was constructed incrementally via the yawn-inducing regulation of the shape of wine bottles and the amount of dry matter in loaves (Maduro 1998: 62-63). Weiler characterizes this approach as a "less visible constitutional mutation" through which "the erosion of the limits to Community competences took place"-a "quiet revolution" (Weiler 1991: 2453; Weiler 1994). And Vauchez traces how under "the auspices of a disinterested exchange in the service of the law of Europe," a loose network of lawyers, national judges, and Eurocrats elaborated and promoted the ECJ's judgments (Vauchez 2015: 115). In this view, integration through law reifies the "autonomy and ahistoricity of the law" (Ibid: 57) so as to "banish" it from the politics of the public sphere (Vauchez 2008: 130).

It is thus of little wonder that the increasing politicization of EU law over the past three decades has been repeatedly tied to Eurosceptic backlash. For Hooghe and Marks, European integration has transitioned from being driven by an elite "permissive consensus" to being resisted by the "constraining dissensus" of popular politics (Hooghe and Marks 2009). For others tracing "sustained resistance" against the ECJ's authority (Pollack 2013: 127-75), a political climate of growing Euroscepticism has empowered domestic supreme courts to increasingly revolt against the European Court (Rasmussen 2007; Bobek 2014; Madsen et al. 2017; Hoffmann 2018). And for Alter (2000), the politicization of ECJ decisions risks prompting governments to restrict or rebel against the ECJ's jurisdiction. That a cornerstone of the 2016 "Brexit" campaign was the claim that the ECJ had "overconstitutionalized" the EU and encroached upon the political sovereignty of national parliaments (Blauberger and Schmidt 2017) bolsters these conclusions.

While generally compelling, the claim that technocratic silence helps protect the ECJ's authority neglects an important fact: To enforce a new field of rules like EU law, that field must be known and perceived as useful by actors on the ground. By forging European rules behind a technocratic mask, the ECJ's "quiet revolution" has perhaps proven too quiet, with the unintended consequence of rendering EU law opaque to many local actors who could otherwise enforce it. For example, a recent survey found that three fifths of domestic judges did not know how to refer a case concerning the interpretation of EU law to the ECJ (Directorate General for Internal Policies 2011: 5; see also Pavone 2018). In this light, while public controversy may entrench Euroscepticism, it may also promote what Marc Galanter termed "the radiating effect of courts," embedding transnational rules within "the normative orderings indigenous to the various social locations" under their jurisdiction (Galanter 1983: 118).

But what tips the scales in favor of one outcome over the other? …

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