European Studies and the European Crisis: Legal and Political Science between Critique and Complacency

• Author: Christian Kreuder‐Sonnen,Christian Joerges
• Date: 01 March 2017
• Published date: 01 March 2017
• DOI: http://doi.org/10.1111/eulj.12225

European Studies and the European Crisis:

Legal and Political Science between Critique

and Complacency

Christian Joerges* and Christian Kreuder‐Sonnen**

Abstract: EuropeanStudies used to be dominated by legaland political science approaches

which hailed the progress of European integration and its reliance on law.The recent set of

crises that struck the EU have highlighted fundamental problems in the ways and means by

which European integration unfolds. The quasi‐authoritarian emergency politics deployed

in the euro crisis is a radical expression of the fading prevalence of democratic processes to

accommodateeconomic and social diversityin the Union. As we argue inthis paper, however,

the mainstreams in both disciplines retain a largely affirmative and apologetic stance on the

EU's post‐democratic and extra‐constitutional development. Wh ile political science

contributions mostly content themselves with a revival of conventional integration theories

and thus turn a blindeye to normatively critical aspects of European crisisgovernance, legal

scholarshipis in short supply of normativelyconvincing theoretical paradigmsand thus aligns

itself with the function alist reasoning of the EU 's Court of Justice. Yet, w e also identify

critical peripheries in b oth disciplines which inter sect in their critical appr aisal of the

authoritarian tendencies that inhere in the crisis‐ridden state of European integration. Their

results curb the prevailin g optimism and underline tha t the need for fundamental

reorientationsin both the theory and practiceof European integrationhas become irrefutable.

I Introduction

Europe is in troubled waters. What does the unfortunate state of the European Union

(EU) reveal about the state of the scholarly study of the integration project? Should the

consecutive constitutional crises be understood as challenges to the paradigms,

orientations and expectations that have guided European studies for the past decades?

Our article will discuss this question with regard to the two disciplines that used to be

at the forefront of European Studies: political and legal science.

1

We argue that the

* Professor of Law and Societyat the Hertie School of Governance, Berlin.

** Senior Research Fellow, Resarch UnitGlobal Governance, WZB Berlin Social ScienceCenter. A previous

versionof the article has been made availableas the WZB DiscussionPaper SP IV 2016–109 and has received

valuable commentsby an anonymous reviewer. We alsothank the editor and reviewers forELJ. The article

profited from discussionsin the 2014/15 ‘EU Group’at the Wissenscahftskolleg zu Berlin and at the Chair

of International Relations at LMU Munich. We woul d also like to thank Chris Engert an d Patrick

Frankenbachfor editorial assistance.

1

In European Studies, economics remained in the backg round until very recently. As disciples of law and

political science, we are somewhat hesitantto enter into a debate with economics. But it seems apparent to

us that the ever‐stronger leadership of economics and its functionalist reasoning after the outbreak of the

financial crisis in 2008 signalsan exhaustion of the project of integration by democraticpolitics. We discuss

the turn to expertgovernance in SectionIII.

European LawJournal, Vol. 23, No. 1-2, August 2017,pp. 118–139.

© 2017 John Wiley & Sons Ltd.

euro crisis, in particular, brings to light some fundamental problems in the construction

of the European polity which go along with a number of normative and analytical

misconceptions in these academic disciplines. In distinct ways, the dominant

contributions in political science and law turn a blind eye to the essential challenges

exposed both by the crisis and by the crisis politics deployed as a solution. While a

considerable rift continues to separate the disciplines, both show parallels in their

internal struggles over how to deal with the present situation. We show that the

disciplines' respective cores, while disregarding each other, are largely affirmative and

apologetic with regard to the state and progress of European integration, whereas a

critical periphery in both legal and political science intersects in the analysis and

disapproval of an increasingly authoritarian EU which gives rise to a more

fundamental questioning of the path towards an ‘ever closer Union’.

Traditionally, legal and political science have approached their common objects of

study on distinct disciplinary paths. This is also true for the European integration

project. Jürgen Habermas has succinctly characterised their specifics in one of his

earlier essays on democratic constitutionalism.

2

Legal scholars and political scientists,

he observed, both tend to deal with law in a distinct disciplinary logic. Lawyers focus

on normative issues and the art of legal reasoning. Social scientists treat law as an

empirical phenomenon. The latter do not engage in a l ege artis interpretation and

application of rules, but explore the impact of law, its effectiveness, and its processes

of implementation. The validity and facticity of law tend to be seen as separate

categories. Lawyers, on the other hand, tend to defend the autonomy of legal

operations and the distinctiveness of doctrinal constructs.

These divisionsnotwithstanding, lawyersand political scientists concernedwith Europe

have long shared a common denominator which underlies their respective research

agendas: a principledenthusiasm for the fostering of integration.Both disciplines provide

essentially compatible rationales for moves towards ‘ever more’and, by conceptual

implication,‘ever better’Europe. This transdisciplinary consensus on the common agenda

has made the disciplinary specifics and differences seem much less significant than the

shared commitment for the progress of the integration project. In political science, Ernst

Haas' neo‐functionalist theory of integration first inspired generations of pro‐European

scholars to focus on the potential of shifting the loyalties and expectations of political

actors to the supranational level.

3

Legal scholarship, on the other hand, in its re‐

constructionof the modes and accomplishments of theintegration project, was fascinated

by its reliance on law: ‘integration through law’became both the trademark and the

agenda of European legal studies.

4

Law was conceptualised as ‘the object and the agent

of integration’

5

and even politicalscientists started talkingabout the determinants of ‘legal

integration’.

6

2

J. Habermas, ‘Über den internen Zusammenhang zwischen Rechtsstaat und Demokratie’,in: U.K. Preuß,

(ed.), Zum Begriff der Verfassung. Die Ordnungdes Politischen (Fischer, 1994), pp. 83–94 [‘On the Internal

Relation between the Rule of Law and Democracy’, in: J. Habermas, The Inclusion of the Other: Studiesin

PoliticalTheory (MIT Press, 1998), pp. 253–264].

3

E.B. Haas, The Uniting of Europe: Political, Social, and Economic Forces, 1950–1957(University of Notre

Dame Press, [1958]2004).

4

M. Cappelletti,M. Seccombe and J. Weiler, Integration t hrough Law (Walter d e Gruyter, 1986).

5

R. Dehousse and J.H.H. Weiler, ‘The Legal Dimension’, in W. Wallace (ed.), The Dynamics of European

Integration(Pinter Publishers forthe Royal Institute of International Affairs,1990), 242–60, at 243.

6

A.‐M. Burley and W. Mattli,‘Europe Before the Court: A Political Theory of Legal Integration’,(1993)47

Internationa l Organisation,41–76.

European Law Journal Volume 23

©2017JohnWiley&SonsLtd. 119