The Network on SSRN: Mark Pollack, The New EU Legal History: What's New, What's Missing?

We are instituting a new feature on the blog: recent scholarship of network members on the Social Science Research Network (SSRN).  Our first installment is an article recently posted by Mark Polack (Temple), entitled "The New EU Legal History: What's New, What's Missing?," forthcoming from the American University International Law Review.  The piece touches on the work of several other network members, including Anne Boerger-de Smedt (Alberta), Bill Davies (American) and Peter Lindseth (UConn), as well as friend of the network Morten Rasmussen (Copenhagen).  The article can be downloaded here, and the abstract is reproduced below.

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For several decades, the history of the European Court of Justice has been studied primarily by legal scholars and political scientists, but not by historians, who focused primarily on the political and economic history of the European Union (EU). That anomaly is starting to be rectified, with the emergence of what I call the New EU Legal History. In this paper, I review the arguments and the findings of this new historical research, asking what is new, what value-added insights have emerged about the early Court vis-à-vis existing political science and legal scholarship, as well as what is still missing, namely what important questions remain to be addressed by EU legal historians.

The paper is organized in three parts. First, I provide a brief summary of some of the primary themes of recent political science scholarship on the ECJ, identifying four primary questions and debates from that literature: the nature and preferences of the Court, the independence of the Court vis-à-vis the member states, the Court’s relationship of the Court to national courts, and the “constitutionalization” of the treaties.

Second, I look to the New EU Legal History, asking what genuinely new insights, if any, it has generated with respect to each of these four questions. I argue that EU legal historians have indeed challenged some widely held assumptions in the political science literature, and also help to adjudicate among long-standing, and competing, theories of judicial politics and European integration. In terms of the nature of the Court and its preferences, historians have challenged the complacent assumptions about the unity and the pro-integration preferences of the Court, showing us instead an early Court that was divided in its views and whose judges were far from consistently “constitutional” in their preferences. With respect to the independence of the Court, the early Court was willing to rule against the expressed will of powerful member states, counter to the predictions of a simple intergovernmentalist model, yet these same judges were more cautious, and more acutely aware of the potential for backlash, than a strong “trusteeship” image might imply. In terms of the Court’s relations with national courts, historical studies have reinforced the findings of recent political science scholarship, which finds numerous examples of consistent, sustained national-court resistance to the ECJ, whose reception in the member states’ legal orders was and remains an uneven “patchwork.” Finally, all of these findings taken together yield a picture of an ECJ whose constitutionalization of the treaties was indeed an act of agency, but a more contingent, and more contested, act than the heroic accounts of this period have suggested until now.

The third and final section identifies a series of potentially interesting and important questions that remain underexplored by legal historians, and issue a plea for historians to engage these questions as well.