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

Date01 March 2017
Published date01 March 2017
European Studies and the European Crisis:
Legal and Political Science between Critique
and Complacency
Christian Joerges* and Christian KreuderSonnen**
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 quasiauthoritarian 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 afrmative and apologetic stance on the
EU's postdemocratic and extraconstitutional 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 crisisridden 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.
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 2016109 and has received
valuable commentsby an anonymous reviewer. We alsothank the editor and reviewers forELJ. The article
proted from discussionsin the 2014/15 EU Groupat 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.
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 everstronger leadership of economics and its functionalist reasoning after the outbreak of the
nancial 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. 118139.
© 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 afrmative 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 specics in one of his
earlier essays on democratic constitutionalism.
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 moreand, by conceptual
implication,ever betterEurope. This transdisciplinary consensus on the common agenda
has made the disciplinary specics and differences seem much less signicant than the
shared commitment for the progress of the integration project. In political science, Ernst
Haas' neofunctionalist theory of integration rst inspired generations of proEuropean
scholars to focus on the potential of shifting the loyalties and expectations of political
actors to the supranational level.
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 lawbecame both the trademark and the
agenda of European legal studies.
Law was conceptualised as the object and the agent
of integration
and even politicalscientists started talkingabout the determinants of legal
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. 8394 [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. 253264].
E.B. Haas, The Uniting of Europe: Political, Social, and Economic Forces, 19501957(University of Notre
Dame Press, [1958]2004).
M. Cappelletti,M. Seccombe and J. Weiler, Integration t hrough Law (Walter d e Gruyter, 1986).
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), 24260, at 243.
A.M. Burley and W. Mattli,Europe Before the Court: A Political Theory of Legal Integration,(1993)47
Internationa l Organisation,4176.
European Law Journal Volume 23
©2017JohnWiley&SonsLtd. 119

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