The Early Warning System for the Principle of Subsidiarity. Constitutional Theory and Empirical Reality. By Philip Kiiver. London: Routledge, 2012. 176 pp. Hb. £75.00.

DOIhttp://doi.org/10.1111/eulj.12038_2
Date01 May 2013
Published date01 May 2013
AuthorMarco Goldoni
BOOK REVIEWS
Eurolegalism. The Transformation of Law and Regulation in the European Union.By
Daniel R. Kelemen. Boston: Harvard University Press, 2012. 378 pp. Hb. 45.00.
The first chapter of Kelemen’s book is titled ‘The Juris Touch.’ To most readers, this
evokes an image of a lavish and rapacious King—the image that Kelemen himself
verbalises at the end of the chapter. Just as King Midas’ touch turned everything into
gold, according to Kelemen, a sprinkle of toxic magic also marks the EU’s touch,
turning everything it touches into law. Very likely, the reader will now think: surely,
a harried Europe has enough crises already!
Indeed, Europe and Europeans seem to be ploughing on from crisis to crisis, with
scholars in tow. Despite the inauspicious opening, Kelemen bucks the trend, if not only
because the book was written before the latest EU crisis was well under way, and
adopts a refreshingly different perspective. The book opens at the airport. Narrating
the birth and development of EU legislation that gives more rights to flight passengers,
he observes that ‘This chain of events would have been unimaginable thirty years ago’
(p. 4). This is the sentiment that informs the whole book. Yet sentiment does not lead
to sentimentality. Kelemen skilfully avoids a drama of doomsday as well as a nod to
nostalgia and manages to say something inordinately useful for those bothered about,
as well as for those tired of, the legal and political implications of the EU’s many crises.
Kelemen paints a picture of Europeans who relied on informal, opaque and coop-
erative ways of regulation that kept courts, armies of lawyers and other symptoms of
legalistic excess at arm’s length—and who scoffed at Americans along the way. The
scoffing, however, was premature, argues Kelemen. European integration comes with
its own logic that hardens the law, bolsters the role of courts and enhances the use of
private enforcement. The reasons he gives for this are twofold: on the one hand, the
completion of the Internal Market project has thinned out national regulatory
regimes (deregulation), with the gaps being filled in by supranational regulatory
content (reregulation). On the other hand, the dynamics of ‘political fragmentation,’
by which Kelemen means horizontally and vertically divided authority, in particular
the broader dynamics of the EU’s strong judiciary and weak implementation and
enforcement capacity (p. 24), have necessitated a style of regulation or mode of
governance that is formal and strict, leaving little to the discretion of national
bureaucracies, and creating enforceable rights for individuals. The result is what
Kelemen calls Eurolegalism.
Eurolegalism derives from Robert A. Kagan’s study (2001) on adversarial legalism
in the USA. Kelemen does not found his argument on the notion of the American
legal way of life journeying across the Atlantic; instead, he says that the EU
engenders its own ‘variant’ (p. 7). This non-diffusion stance effectively immunises
him against criticism from those who have traditionally argued that national legal
cultures shelter Europe from adversarial legalism (or at least the critics now need to
update their argument to explain how national legal cultures protect themselves from
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European Law Journal, Vol. 19, No. 3, May 2013, pp. 443–453.
© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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