Jean Monnet Center at NYU School of Law



Any lawyer can, at best, be ambivalent about the study of judicial politics. The treatment of courts 'as one governmental agency among many - as part of the ... political process rather than as a unique body of impervious legal technicians above and beyond the political struggle'1 suggests a supreme disinterest in the epistemic foundations of law. This heavy instrumentalisation, by reducing courts to simple agents of the political process, can offer little instruction in the grammar codes of legal knowledge, processes and discourse. It is the internalisation of these by participants, which forecloses certain options and provides a certain resistance to, and therefore autonomy from, outside pressures - in essence, those very legal qualities that lead political or other actors to resort to law. Yet for this author, at least, ambivalence is not synonymous with dismissal. The autonomy of the political system imposes external constraints upon the operation of the law and whilst the judicial system may be autonomous, it is not autarkic. It will often be used instrumentally by political actors. Indeed, a feature of the legal system is that it is particularly vulnerable to these outside pressures. For its quest for formal and functional effectiveness leads not just to a concern with the problem of compliance, but also to a desire to 'perfect', and therefore be sensitive to, the properties of the political processes, domestic and EU, that it regulates. The insights offered by judicial politics lie precisely on this apex in its strong focus upon the process of negotiation and adjustment between the judiciary, other agencies of government and the wider political sphere.

Judicial politics studies have a particular strong resonance in the case of the judicial system of the EU. The dependence of the EC legal system upon a variety of national governmental agencies for its implementation, enforcement and much of its application has led to concerns about its formal effectiveness, whilst its relatively inchoate and 'young' nature has rendered it particularly vulnerable to charges of being excessively disruptive. These structural features have been exacerbated by the activities of the Court of Justice. It has both developed relationships with national courts and litigants that, in functional terms, have acted as surrogate policy processes at the expense of national governments,2 and, through its constitutionalist case law, placed itself at the centre of all debates about the civil and political identity of the Union. These have raised expectations about the capability of EC law to ensure compliance and about the demands in terms of liberal values that can be exerted by it,3 whilst, at times, testing the limits of its acceptance by national government agencies and judges.

It is unsurprising therefore that a rich literature in judicial politics has developed. The debate centres around three themes. There are, first, theses which revolve around institutional politics. These focus on the motivations and behaviour of national courts. On the one side of the divide there are arguments which attribute a calculative frame on the part of the national courts. The possibilities offered by EU law for rent-seeking versus other arms of government,4 other branches of the judiciary5 or simply the opportunities it provides to advance personal policy preferences6 has, it is claimed, influenced national judicial reception of it. They also include arguments, which suggest that the high acceptance of EC law by national judges can be attributed to no prior calculations on the part of national courts but is rooted in notions of judicial identity7 or the absorption of fairly pliant norms into local contexts.8 The second theme centres upon interest group politics. If national courts and the Court of Justice are seen as >supplying EC law=, these theories suggest that it is policy _lites, which provide the demand for EC law.9 The invocation of EC law therefore depends upon the organisation of resources at a national level,10 the presence of repeat litigators11 and the extent to which litigants are excluded by other policy processes. The third theme of debate links the invocation of EC law less explicitly to a narrow institutional context. Instead, it draws a correlation between the level of acceptance and application of EC law and the level of transnational activity.12 Correllations are therefore made between the levels of preliminary references and receptiveness to EC law by national law on the one hand and levels of intra-EC trade on the other.

These themes follow patterns that permeate the broader judicial politics debate.13 Yet, as theories, they share a unique attribute. None have been thoroughly tested. The bulk of the Court's 'constitutionalising' has national courts at its epicenter, as it locates itself in their duties to apply EC law independently of and over national law. In like vein, national courts have acted as interlocutors of the Court of Justice, through their reference of questions of EC law and enforcement of rulings, in virtually all those areas where its judgments have encroached in substantive policy terms on national government autonomy. Any analysis of the depth and contribution of judicial politics to EU integration must therefore use national courts as its principal laboratory. The evidence used for all the above, however, has been scant and unrepresentative. It includes the - for this debate- largely irrelevant case law of the Court of Justice itself;14 the very occasional 'seminal' judgments from higher courts accepting or resisting the formal invocation of EC law;15 those minority of judgments referred to the Court of Justice from national jurisdictions16 or interesting, but unextrapolable, case studies.17

Even to focus on reported cases, as this study does, in its examination of all reported judgments in the United Kingdom between 1971 and 1998 in which EC law was addressed by national judges, has a faute de mieux quality.18 It will not capture extra-judicial legal activity nor will it capture the intensity of the British judicial contribution to European integration, as the overwhelming number of cases, particularly in the lower courts, are not reported, and many of those reported are, in reality, representative actions, whose results will be used to resolve a number of other actions. Moreover, as it is complexity, novelty and legal significance which tend to lead to judgments being reported, these can not be unquestioningly correlated to the broader category of non-reported judgments.19 Two studies in the United States have given empirical weight to the intuitive suspicion that because of the nature of the cases reported, judges there tend to be more aware of their role in the policy-making process.20 In cases involving EC law, where the question of integration is a central binary code of the policy-making process, one would therefore both expect a higher proportion of references and refusals to refer from reported cases. One would also expect a higher percentage of judgments to be reported that are either explicitly 'positive' or 'negative' about EC law. This might be through giving or refusing to give it de iure supremacy, granting significant (or rejecting) institutional authority to the decisions of the Commission or Court of Justice, or judgments which considerably extend the ambit of substantive provisions of EC law or severely restrict or distinguish them.

Nevertheless, a study of reported cases has a representative value in two senses. It is, firstly, indicative of the spread of litigation. If anything, such a study is likely to understate the proportion of litigation in EC law's most heavily litigated areas. For the areas where EC law has been most heavily invoked -tax, social security, labour and immigration - are legal domains which tend to be dominated at first instances by quasi-judicial bodies - Employment Tribunals, Immigration Adjudicators, Social Security Commissioners, VAT Tribunals - whose decisions are only rarely reported. Secondly, a study of reported decisions does capture the amplificatory effects of judicial activity. That is to say it will capture that level of judicial activity that provokes responses in significant legal and non-legal milieus. This is, partly, because all decisions that carry doctrinal weight on anything other than on interlocutory matters, symbolic importance or far-reaching effects on economic or political activity will be reported. It is also important because the act of reporting, by bringing the decision to the attention of legal and other communities, generates those circulatory effects likely to provoke a reaction.

Needless to say, a statistical analysis of those British cases in which EC law was invoked paints a different picture from prior judicial politics accounts. A salient feature is that the bulk of such activity is very narrowly focused. It is narrow not just in the sectors of EU law it covers. It is also narrow in that it covers very few private disputes, and it is narrow in terms of the ideological readjustments that it has provoked. All this, in institutional terms, contributes to understanding why the judicial application of EC law has not provoked more tensions. The threat suggested to administrative autonomy through judicial empowerment has been limited. Moreover, insofar as most EC law is, in practical terms, not judicially enforceable, it has instead been used to augment administrative capacity through its development of administratively-applied norms and networks.

Those areas that were litigated tended to be intensively litigated. This piece examined the reaction to judicial developments of both the British administration and the wider public sphere. It found that, contrary to some assumptions, litigation was not some form of policy-making by stealth. There was a high level of coverage and debate in at least some of the areas that were most intensively litigated. The central variables here were twofold. The first was the extent to which to which the area was dominated by _lite competition and political cleavages. The second was the extent of Court of Justice involvement either actively through the preliminary reference procedure, or, passively, through invocation of its case law by domestic courts. Comment and debate, normally adverse, increased in proportion to the extent of this involvement. The reason for this seemed to be that the Court of Justice offered an opportunity structure for 'outsider' _lites who had been denied satisfaction in domestic fora. Once a judgment had been made, it was relatively easy, because of the decision-trap, for the latter to block amendments to EC legislation with the consequence that there was heavy polarisation between EC and domestic law.

The third feature that this analysis picked up on was how British courts have positioned themselves within these wider processes. It found that in addition to the traditional constraints mentioned in the literature, which circulate around questions of judicial incentives and judicial identities, there were a number of further features derived from the institutional environment - going to perceptions of what the courts were meant to do - that influenced judicial behaviour. There was no evidence that the judiciary were concerned to protect particular central spheres of British political and legal life from EU intrusion. Resistance was, however, marked where EU law restricted domestic institutions' capacity to secure conformity in British society - whether that conformity takes the form of securing those conditions that sustain and stabilise private relationships and private autonony or whether it takes the form of protecting those institutions, such as criminal or immigration law, which are taken to sustain a common collective consciousness.

The final feature touched by this aspect is the position of the preliminary reference procedure and Court of Justice within all of this. The study found that in most areas there was a very high number of references granted in proportion to those refused. This suggested that in the United Kingdom, at least, the preliminary reference procedure was far closer to a litigant-Court of Justice relationship, with national courts acting as a relay between the two, than a court-court dialogue, as has been suggested by some. In this, crucial to the pattern of references was the pattern of litigant behaviour, and, in particular the remedies sought. Unsurprisingly, they tended to be higher where parties were seeking judicial review than where they were seeking financial remedies. In the former case they made little sense, whereas, in the case of the latter, they secured with the utmost certainty the remedy pursued, namely change of the existing legal settlement, and offered actors considerable publicity for their cause. Yet more broadly, there seemed to be two dynamics that propelled the overwhelming majority of references to Luxembourg. The one was the growth of the regulatory State in the United Kingdom. This had led to on-going relations between industry and public authorities across a variety of fields, with litigation, and preliminary references, increasingly used as a strategy for marking parameters in this enduring process of negotiation and adjustment. The other was interest group politics, where almost exclusively non-commercial interests, used Luxembourg as an opportunity structure for achieving broad domestic legal change that was otherwise impossible to achieve. Both types of action were highly unrepresentative of the other case law.

1 M. Shapiro, Law and Politics in the Supreme Court (1964, Free Press, New York) 15.

2 K. Alter, `Who are the "Masters of the Treaty"?: European Governments and the European Court of Justice' (1998) 52 International Organization 121, 125.

3 Most notably J. Weiler, The Constitution of Europe (1998, CUP, Cambridge).

4 J. Weiler, >A Quiet Revolution: The European Court of Justice and Its Interlocutors=(1994) 26 Comparative Political Studies 510, 523; W. Mattli & A-M. Slaughter 'The Role of National Courts in the Process of European Integration: Accounting for Judicial Preferences and Constraints' 253, 259-261 in A-M. Slaughter, A. Stone Sweet & J. Weiler (eds) The European Court and National Courts: Doctrine and Jurisprudence (1998, Hart, Oxford). It should be noted that neither of these authors, nor any author for that matter, has argued that this is the sole, or even predominant, factor influencing national judicial attitudes towards EU law. In their most recent work, these authors catalogue a number of factors, which will have varying degrees of pull in different cases. These include judicial self-understanding; cross-fertilisation of ideas and concepts between courts; the broader national and European political contexts; the deployment of national courts by litigants; the impact of different legal cultures, and, lastly, the biases of individual judges. J. Weiler, A-M. Slaughter & A. Stone Sweet, `Prologue-The European Court of Justice' in A-M. Slaughter, A. Stone Sweet & J. Weiler (eds.) The European Courts and National Courts: Doctrine and Jurisprudence (1998, Hart, Oxford).

5 K. Alter, 'Explaining National Court Acceptance of European Court Jurisprudence: a Critical Evaluation of Theories of Legal Integration' in A-M. Slaughter, A. Stone Sweet & J. Weiler (eds) The European Court and National Courts: Doctrine and Jurisprudence (1998, Hart, Oxford).

6 J. Golub, 'The Politics of Judicial Discretion: Rethinking the Interaction between National Courts and the European Court of Justice' (1996) 19(2) WEP 360.

7 D. Chalmers, >Judicial Preferences and the Community Legal Order=(1997) 60 Modern Law Review 164.

8 I. Maher, >Community Law in the National Legal Order: A Systems Analysis=(1998) 36 JCMS 237.

9 A-M Burley & W. Mattli, >Europe Before the Court: A Political Theory of Legal Integration=(1993) 47 International Organisation 41; W. Mattli & A-M. Slaughter, `Revisiting the European Court of Justice' (1998) 52 International Organization 177.

10 K. Alter, 'Where, When and How does the European Legal System Influence Domestic Policy' (2000) 54 International Organisation (forthcoming); K. Alter & J. Vargas, 'Explaing Variation in the Use of European Litigation Strategies: EC law and UK Gender Equality Policy' (2000) 32 Comparative Political Studies (forthcoming); L. Conant, `Europeanization and the Courts: Variable Patterns of Adaptation among National Judiciaries' in J. Caparaso, M. Cowles & T. Risse (eds) Europeanization and Domestic Structural Change (2000, Cornell University Press, Ithaca).

11 C. Harlow & R. Rawlings, Pressure Through Law (1992, Routledge, London) 268-287; R. Rawlings, >The Eurolaw Game: Some Deductions from a Saga=(1993) 20 Journal of Law & Society 309

12 J. Golub, Modeling judicial dialogue in the European Community: the quantitative basis of preliminary references to the ECJ (RSC 96/58 WP, EUI, Fiesole); A. Stone Sweet & T. Brunell, >The European Court and the National Courts: A Statistical Analysis of Preliminary References=(1998) 5(1) JEPP 66; A. Stone Sweet & J. Caparaso, >From Free Trade to Supranational Polity: The European Court and Integration=in W. Sandholtz & A. Stone Sweet (eds) European Integration and Supranational Governance (1998, OUP, Oxford)

13 For a summary of the main lines of argument see E. Ringquist & C. Emmert, 'Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Litigation' (1999) 52 Political Research Quarterly 7.

14 G. Garrett, `International cooperation and institutional choice: the European Community's internal market' (1992) 46 International Organization 533; G. Garrett, `The politics of legal integration' (1995) 49 International Organization 171; G. Garrett, R. Keleman & H. Schulz, `The European Court of Justice, National Governments and Legal Integration in the European Union' (1998) 52 International Organization 149; A-M Burley & W. Mattli, `Europe Before the Court: A Political Theory of Legal Integration' (1993) 47 International Organization 41; W. Mattli & A-M. Slaughter, `Revisiting the European Court of Justice' (1998) 52 International Organization 177.

15 eg A-M Slaughter, A. Stone Sweet & J. Weiler (eds) The European Courts and National Courts: Doctrine and Jurisprudence (1998, Hart, Oxford).

16 J. A. Stone Sweet & T. Brunell, `The European Court and National Courts: A Statistical Analysis of Preliminary References 1961-1995' (1997) 5 Journal of European Public Policy 1

17 R. Rawlings, `The Eurolaw Game: Some Deducations from a Saga' (1993) 20 Journal of Law & Society 309; K. Alter & J. Vargas, `Explaining Variation in the Use of European Litigation Strategies: EC Law and UK Gender Equality Policy' (2000) 32 Comparative Political Studies (forthcoming).

18 Almost all reported cases involving EU law are passed on to the Registry of the European Court of Justice. The author is particularly grateful to Jacqueline Suter who provided a list of these judgments, which acted as the starting point for this research. The following law reports were then scanned: - British Company Cases, Common Market Law Reports, Current Law, European Commercial Cases, European Current Law, European Law Reports, European Trade Mark Reports, Environmental Law Reports, Fleet Street Reports, Immigration Appeal Reports, Incorporated Law Reports of England and Wales, Industrial Case Reports, International Legal Procedure, Intertax, Law Reports of Jersey, Lloyds Law Reports, Manx Law Reports, Northern Ireland Law Reports, Reports of Patents and Design, Weekly Law Reports, Scots Law Times, Session Cases, Simon's Tax Cases, Times Law Reports, Trading Law, Value Added Tax Tribunals Reports. In the case of judgments that involved more than one court, either because of appeal or reference, the judgment was given only a value of 1 and the decision of the final court taken. If a fresh matter was litigated between the parties, however, it was treated as a separate judgment. This happened in only 2 cases.

19 On the United Kingdom see B. Atkins, 'Interventions and Power in Judicial Hierarchies: Appellate Courts in England and the United States' (1990) 24 Law and Society Review 71; B. Atkins, 'Data Collection in Comparative Judicial Research: A Note on the Effects of Case Publication upon Theory Building and Hypothesis Testing' (1992) 45 Western Political Quarterly 783.

20 In the one study this led to more employee-friendly judgments than in non-reported cases. In the other it led to severer environmental penalities. See, respectively, J. Donohue & P. Siegelman, 'The Changing Nature of Employment Discrimination Litigation' (1989) 43 Stanford Law Review 983. E. Ringquist & C. Emmert, 'Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Litigation' (1999) 52 Political Research Quarterly 7. See also for a general study confirming this, C. Rowland & R. Carp, Politics and Judgment in Federal District Courts (1996, University of Kansas Press, Lawrence).



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