Kelemen_EurolegalismAndDemocracy

Kelemen_EurolegalismAndDemocracy - Eurolegalism and...

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Eurolegalism and Democracy R. Daniel Kelemen Rutgers University [email protected] Word count: 8855
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1 Abstract European integration is encouraging the judicialization of politics and the spread of a distinctive, juridified mode of governance we can refer to as Eurolegalism. The central argument of the paper is that judicialization and the rise of Eurolegalism are not undermining democracy in Europe, as some critics would suggest, but are changing its character. These trends will change the types of policies that European democracies can effectively pursue and the processes through which they can pursue them.
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2 Since the end of World War II, member states of the European Union (EU) have experienced a profound judicialization of politics. In the broadest sense, the judicialization of politics involves, “[greater] reliance on courts and judicial means for addressing core moral predicaments, public policy questions and political controversies” (Hirschl 2008, p.119). 1 In Europe, this judicialization has taken on many forms at the national and supranational levels, such as national constitutional courts declaring legislation unconstitutional, administrative courts challenging executive actions, prosecutors using the courts to topple corrupt politicians, the European Court of Justice (ECJ) asserting legal doctrines that erode national sovereignty and advance the scope of European integration and the European Court of Human Rights (ECHR) issuing controversial rulings that challenge national social and cultural practices. Developments at the national and supranational levels have been tightly linked, with national and supranational courts relying on one another as allies in expanding judicial power. Most scholarly literature on judicialization at the national level has focused on the strengthening of courts’ of constitutional review powers (Tate and Vallinder 1995; Stone 1992; Volcansek 1992; Shapiro and Stone 1994; Stone Sweet 2000; Ferejohn 2002; Guarnieri and Pederzoli 2001; Hirschl 2004). In the field of European integration, much of the scholarship on law and politics focuses on how the ECJ promoted the constitutionalization of the treaties. Pioneering scholars such as Stein (1981), Cappelletti (1985) and Weiler (1991) highlighted the central role that European law played in propelling forward the process of European integration. More recent landmark works by scholars such as Stone Sweet (2000, 2004), Alter (1998, 2001) and Burley and Mattli
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3 (1993) built on these foundations and developed even more nuanced models of the role that the ECJ – in partnership with national courts – has played as an engine of European integration. These scholars, and others such as Conant (2002) and Cichowski (2007), have particularly highlighted the role that litigation brought by private parties plays in the construction of the EU’s legal order. 2
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This note was uploaded on 02/05/2012 for the course 790 395 taught by Professor Tillery during the Fall '09 term at Rutgers.

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Kelemen_EurolegalismAndDemocracy - Eurolegalism and...

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