In this Issue

• Published date: 01 May 2014
• Author: Agustín José Menéndez
• Date: 01 May 2014
• DOI: http://doi.org/10.1111/eulj.12088

In this Issue

Rob Van Gestel and Hans-Wolfgang Micklitz cast a critical eye on European legal

methods. ‘Black letter’ legal scholarship, on the retreat in the United States, seems to

have managed to retain its hold on the law schools of Europe. In other words, the

‘incoming tide’ has not led to methodological renovation; it may well be that the

‘receding tide’ has proven to be stronger at the end of the day. The high hopes that the

development of community law would quite naturally lead to a renewal of legal

methods have been frustrated. Far from providing a standpoint from which to ques-

tion institutional legal discourses and methodologies, European legal scholarship has

ended up mimicking the way European institutions (especially the European Court of

Justice (ECJ)) see the law. The result is a European legal scholarship that lacks a

critical edge and is insufficiently attentive to the wider socio-economic consequences

of judicialisation. In other words, European legal scholarship runs the risk of becom-

ing characterised by a toxic mix of ‘pervasive legal instrumentalisation’ and ‘hear

behaviour’. European research policy and research funding tend to reinforce the

tendency to engage into group thinking (who does not remember the times when

governance was the booming scholarly industry?). Van Gestel and Micklitz call for a

calm but radical change. ‘Classical’ legal methods (the general theory of law that is

not only theorised in legal philosophy courses, but which makes up the very structure

of each ‘positive law’ discipline) have a role to play, and should remain a key part of

the toolbox one learns in law schools. But the authors feel it is imperative that the law

in context approach that has defined this journal since its foundation becomes part of

the tools of the legal trade. Opening up law to the social sciences and to humanistic

disciplines may give European law a depth and breadth that it now lacks. Legal

scholarship, legal advising and policy advising may then be clearly differentiated.

Bernard M. Hoekman and Petros C. Mavroidis dissect the theoretical and pragmatic

implications of the ruling of the ECJ in the Fedon case. As the readers might recall,

the European Union (EU) was found to have breached World Trade Organization

(WTO) law regarding the importation of bananas back in 1988. The EU did not

comply with the ruling and in due course, the United States became entitled to

increase tariffs on goods originating in the EU. Among those (badly) hit was the

plaintiff in the Fedon case, an Italian producers of glasses. Fedon claimed damages

before both the Court of First Instance and the ECJ. It failed in both cases. Hoekman

and Mavroidis take issue with the rulings for two main reasons: firstly, because the

understanding of the relationship between EU law and WTO law that emerges from

the ruling is problematic per se, as it seems to question the degree to which the EU is

committed to WTO law (what is a wrong in the eyes of WTO law is not a wrong in

the eyes of EU law if failure to comply is in the general European interest); secondly,

because Fedon and its fellow sufferers are left in an unacceptable position: they are

made to bear costs that should be borne by European taxpayers at large. Hoekman

and Mavroidis consider both the EU paying direct compensation to those affected

negatively by the European lack of compliance or compensating all the exporters

targeted by the retaliation of the trading partners.

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European Law Journal, Vol. 20, No. 3, May 2014, pp. 289–291.

© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA