Review : Antoine Vauchez & Bruno De Witte (eds), Lawyering Europe: European Law as a Transnational Social Field

Joelle Grogan, University of Oxford

The process of European Integration is under no less political, legal and social scrutiny now than during its beginnings over sixty years ago. The succession of financial and political crises of the last decade has led to increasing political scepticism and academic examination of the viability of the European dream of integration. Within this already crowded debate, it is difficult to present a new or unique perspective, or to shift argument in a new direction. However, this is what Lawyering Europe: European Law as a Transnational Social Field aims to do.

The new volume edited by Antoine Vauchez and Bruno de Witte seeks to realise European law as a social and political phenomenon, and to (re)assess the roles of lawyers, and other agents behind EU legal norms and decisions. To aid this grand vision, perspectives on the process of European integration from different disciplines (including law, political science, political sociology and history) are presented.  This shift in focus can be seen as part of an increasing movement to end the ‘splendid isolation’ of legal study, and encourage a more diverse and multi-disciplinary approach.  The danger with this approach, however, is that academic autonomy tends to breed esoteric terminology and methodology, not immediately understandable to the uninitiated. However, Vauchez provides an excellent introduction to the multi-disciplinary themes of the book, making potentially unknown concepts such as ‘transnational networks’ and ‘social capital’ as accessible as possible. Readers are advised that his introduction is essential reading, before launching into any other attention-grabbing chapter.

In the first contribution, Antonin Cohen provides an account of the formation of the Court of Justice of the European Communities, and seeks to unmask (or perhaps ‘disrobe’) the ‘evolutionary illusion’ of Community agents as judges, and an EU institution as a court. It poses an interesting question for the reader: to what extent is the progress of European integration a self-fulfilling social process or inescapable by successive, self-referencing decisions (and is there a difference)? Cohen aims to provide an answer by tracing the genesis of the Court through the contributions of its judicial core. The conclusion reached rejects abstract theorizing, instead arguing that the social construction of the Court of Justice and its assertion of authority over national orders is the result of declarations of equivalence between national principles, and pressures to reject labels of ‘international law’ to move in the federal direction. However, if true, for the reader this inspires a further question of the extent to which these pressures inevitably lead in the direction of integration, or whether this is dependent on the inclinations of individual legal agents.

Continuing the theme of legal agents, Jean Paul Jacqué contributes a chapter on the ‘Role of Legal Services in the Elaboration of European Legislation’. Jacqué might have wished to avoid the adage that legal study is simply ‘plagiarism with footnotes’, by including only two, largely inconsequential footnotes. The criticism of this approach is that the contribution appears to be a series of assertions on the inter-personal relationships of the lawyers in EU legal service. Ultimately reading as a short management guide for the new trainee, including sections on the unwritten professional codes of ‘independence’, ‘collegiality’ and ‘modesty’, it gives some insight into the workings of the many ‘circles’ of the Legal Services, but does not necessarily realise any grander aim of a reassessment or analysis of the role of lawyers in the European integration process.

From a national perspective, Marie-Pierre Granger provides an account of the role and influence of Governments’ agents on the development of European Union Law.  Highlighting the previous lack of interest by national government officials in judgments by the Court of Justice, Granger argues that, with increasing investment in European litigation by national governments, these agents are likely to become less marginalised by domestic and EU administrative communities, and to have a significant impact on EU legal developments. This conclusion rests upon an assumption that the EU is moving towards a pluralistic and inter-governmental form of European integration, one not necessarily proven in the examples given of the use of proportionality and subsidiarity to preserve national constitutional identities. Nevertheless, this chapter provides an interesting consideration of an otherwise, and often, overlooked group of agents in the European legal field.

In an age of social and professional networking, Maartje de Visser and Monica Claes declare ‘networks’ to be en vogue in European governance. They present an account of European judicial networks, and their importance in fostering ties between national courts and improving their [vertical] interactions with the Court of Justice. The prevalent question of whether the relationship between courts is dictated by a horizontal and bilateral, or a vertical and multilateral, relationship forms the backdrop to the second part of this chapter, and the reader will find an interesting overview of the interactions between courts, and the questioning of whether mutual references are indicative of either of these positions. Evaluating the usefulness of networks, the authors present an account beyond the obvious and familiar scholarly considerations of the educational and transnational trust benefits to judges, and highlight the dangers of the proliferation of networks: the risk of overlaps in mandate, inconsistency, and legal fragmentation. A warning with perhaps wider application than that presented in the chapter.

Bruno de Witte’s contribution provides a fascinating insight into the development of European Union law to become an autonomous academic discipline, including an investigation into modes of legal study across Member States.  An important facet of the process of European integration, and a unique element of European legal discourse, is the necessity of looking ‘across the border’ to the experiences of other Member States. However, noting that scholars often do not engage in self-reflective inquiries of the nature and state of their field, de Witte highlights the dangers of parochialism, and often the étatism of learned concepts, and also the fragmentation of study along linguistic or national lines – all of these especially damaging to European legal study, and, by extension, the European integrative process. Concluding on the assessment that Community law literature has been essentially sympathetic to the integrative process, the contribution praises the new and innovative generation of European scholars engaging in more theoretical and interdisciplinary research, departing from the doctrinal studies of the early academics. This contribution is, no doubt, lauding the inter-disciplinary and transnational aims of the book of which it is part, however, this does not diminish the insightful account of the progress of European legal study constitutive of the process of European integration.

Similarly, Stéphanie Hennette-Vauchez’s contribution traces the development of the ECHR and Human Rights law as an independent academic discipline. From the early attempts at innocuous adaptation to national legal (and moral) norms, it may have seemed surprising for the ECHR to develop into coherent norms, let alone a field of study. This chapter celebrates the contributions of its early pioneers through small circles of academic writing, festschriften, and the participation of legal journals in legitimising the study of European human rights. One potential weakness, which can often be found in comparative studies between EU Member States, is the sole focus on one or two jurisdictions (in this case, France and Italy). This leaves the reader to either assume that their two models are representative of a larger proportion of jurisdictions, or to wonder why these two jurisdictions were singled out for attention.  Apart from this, the chapter ends on a thought-provoking conclusion: there is no one ‘transnational discourse’ on human rights in Europe, but rather fragmented, local adaptations, and this is also true of the process (and progress) or European integration.

In their chapter titled, ‘Where Have all the Lawyers Gone?’ Didier Georgakakis and Marine de Lassalle provide a sociological analysis of the transformation of the academic qualifications of top Commission Officials. Perhaps lamentable for the ambitious law student or lawyer, this chapter aims to provide evidence of an increasing lack of legal training at top institutional levels, and the promotion of ‘skills’ and management over knowledge, specifically of Union law. Written from a political science and sociology perspective, the law student accustomed to the method of reasoned argument, may find difficulty in assimilating the information contained in the numerous tables, percentages, annexes, and extensive lists of qualifications, which are provided as evidence for the position of the increasing irrelevance of traditional legal education to Commission Officials. If this mode of argument is representative of Commission bureaucracy, the authors may have proven their point in form as well as substance.

On the related aspect of institutional expertise, Laurent Godmer and Guillaume Marrel write of the formation of institutional expertise in the European Parliament. The authors adopt a sociological analysis of the members of the European Parliament’s Constitution Affairs Committee (COMAFCO), to explain their efforts towards the constitutionalisation of the European Treaties. Similar to the Georgakakis and de Lassalle chapter, Godmer and Marrel note the high level of university achievement of COMAFCO officials. However, in distinction (and perhaps a relief for the ambitious law student), they note the high level of qualification in law and political science of parliamentarians involved in the COMAFCO. The degree to which this article focuses on the individual contributions of certain members may detract a little from the overarching aim of a reassessment of European integration, however, it provides interesting reading for those wondering about the qualifications of those working towards European integration.

Christian Lahusen writes of law and lawyers in the ‘Brussels World of Commercial Consultants’, exploring the development and structuring of the growing market for commercial consultancies in Europe, and the increasing evidence of the professionalization of the practice. What is especially interesting is the account of the legal profession, caught between the increasing institutionalisation of European public affairs, interest representation and lobbying, while also attempting to maintain the professional status and privilege to which they have traditionally been accustomed. In a regulatory space of mutual recognition, and attempts at the standardisation of the language of academic qualification, Lahusen’s arguments for the need for legal professionalism to counter-balance the dangers of ill-informed, or interest-informed lobbying within European policy debates is thought-provoking. However, the extent to which legal professionals can potentially replace, or even surpass, non-profit and other interest groups in influence is not entirely convincing.

Mikael Rask Madsen considers the power of legal knowledge in the reform of fundamental law, exploring the often insecure position the EU holds with regard to human rights discourse, in particular the divisive relationship between the European Charter of Fundamental Rights and the European Convention on Human Rights. The chapter provides an account of the political and supra-legal debates surrounding the drafting and formation of the Charter, and in a convincing argument, Madsen invites the reader to adopt a long-term perspective on the achievement of the EU as a producer and defender of human rights norms, rather than focussing on individual political defeats (such as the rejection of the Lisbon Treaty in the 2008 Irish referendum). Such a long-term perspective, punctuated by constitutional ‘big-bangs’, is perhaps also the best one to adopt in order to understand the process of European integration. Though the potential criticism of this approach is the reliance on a persistent European constitutional optimism.

No less of a concern than human rights, Mark Dawson considers soft law mechanisms and the rule of law. It is true that ‘the creation of a self-sustaining and authoritative legal order’ has been the object and measure of success of the EU’s development and the ‘decline’ of law’s authoritative, autonomous, normative force in light of rapidly changing and complex social and economic dynamics, leaves open the question of whether soft-law mechanisms help or hinder the initial object of European integration. Taking a moral turn, Dawson adopts Fuller as providing the definitive account of the rule of law, and measures the moral robustness of soft law mechanisms against this account. The difficulty with this is the host of étatist assumptions and established institutional norms upon which Fuller’s account rests. These assumptions, as Dawson correctly concludes, do not survive a post-national transformation. This leads to the conclusion that EU soft law mechanisms are either not rule of law compliant, or the rule of law could be dismissed as redundant, neither of which Dawson wishes to do. Alternatives to this conundrum, such as peer review between states, are lost in the conclusion of the Chapter, leading to the criticism that Dawson should perhaps have been inspired but not guided by Fuller and focused on alternative measures of legality if he wished to present a more convincing examination of the rule of law compliance of soft-law mechanisms.

First argued in his book[1], R Daniel Kelemen considers the concept of eurolegalism, a mode of governance reliant on strict legal norms and the enforcement of these norms by both private and public actors through litigation, as the transformative element on traditional patterns of law and regulation resulting from the process of European integration. The dimension of eurolegalism explored in this chapter is the change of the legal professional. Focussing on the reliance on legal structures to accomplish an open, continental-scale market, this chapter provides a thoughtful perspective on the apparent weaknesses of redress mechanisms such as collective action, and the slow erosion of impediments rooted in civil procedures, which have previously impeded the functioning of eurolegalism and the progress of European integration.

In the final chapter, Yves Dezalay considers the ‘opportunities and limits of a weak field: lawyers and the genesis of a field of European economic power’. Partnering the concepts of networking and social capital, the chapter considers the manoeuvres of law firms and legal networks within an increasingly transnational legal framework in the European economy. A point of criticism of this contribution is perhaps caused by its position as the final chapter. A volume of essays is, by definition, a collection of diverse contributions, and a challenge for editors to sort into a coherent whole under an overarching theme. While this chapter has links with previous contributions on networking and the rise of the Euro-lawyer, it lacks a strong conclusion, and does not ‘pack the pedagogical punch’ of providing a convincing reassessment of the role of ‘law’ and ‘lawyers’ in the European integration process. Although it is expected that in a volume such as this, readers will pick and choose as their interests take them, this chapter may have been more suited to be placed earlier, closer to other networking or sociological perspectives, rather than providing the final word of the volume.

Vauchez and de Witte have assembled a volume which provides many excellent and diverse perspectives on law, the legal profession, and actors across the legal field, as well as their contribution to the process of European integration. The difficulty for Vauchez and de Witte in assembling a diverse team of contributors to realise the grand aim of a social and political reassessment of European integration is to be accessible to both the lawyer and the non-lawyer. The diversity of the project, and its multi-disciplinary aim, does cause it to read as somewhat fragmented on occasion. However, for any student of European Law, a lawyer or a political scientist searching for a different perspective on the process of European Integration, this volume will provide many answers, and very likely inspire many new avenues of exploration.

Lawyering Europe: European Law as a Transnational Social Field (Modern Studies in European Law, Vol. 37, Oxford ; Portland : Hart Publishing, 2013)

[1] RD Kelemen, Eurolegalism: The Transformation of Law and Regulation in the European Union (Cambridge MA, Harvard University Press, 2011).

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