law, which was highly relevant to Britons, as the Community would include Britain if
the enlargement negotiations succeeded. The ideological starting point was the recent
judgements of the ECJ in Van Gend en Loos (1963)
and Costa v ENEL (1964),
the ECJ—pushed by the head of the Legal Service of the Commission Michel Gaudet
—had used a teleological method to define European law as a new, special legal order,
in reality providing a constitutional interpretation of the Treaties of Rome.
Commission and Gaudet, the establishment of a new legal discipline that could nurture
the development of Euro pean law and differentia te it from international l aw was
considered absolutely crucial in order to provide legitimacy to the new jurisprudence
of the ECJ.
Despite the fundamental importance of the development of an academic discipline of
European law, the exploration of the transnational history of the discipline is limited.
Only recentlyhave studies come out by the political scientist Antoine Vauchez and thehis-
torians Morten Rasmussen and Anne Boerger. The conclusions of these first pioneering
efforts concur:While the first steps towards academic researchon European law had been
taken in several Member States already in the 1950s, it was the hope that a comprehen-
sive transnational academic organisation would provide a decisive impetus to the devel-
opment of European law. Steps were thus taken to establish a proper transnational
academic field of European law from the early 1960s onwards, partly by law professors
who were often ideologica lly supportive of European i ntegration, and partly by th e
supranational institutions of the European Communities, especially the Legal Service.
The latter hoped that a transnational academic discipline of European law would
underpin the development of European law generally and promote European law as
constitutional in particular. When established , the discipline functioned as a power–
knowledge nexus with blurry lines between academia and the Community institutions,
and it played a key role in legitimising the jurisprudence of the ECJ as a ‘new legal or-
der’. The notion was in reality synonymous with the constitutional approach of the Le-
gal Service, but the ECJ had chosen a label that was politically less contentious, and
Interesting as these conclusions are, they are only backed by a few in depth empirical
studies. Thus, several articles have explored the role of the Fédération Internationale pour
Case 26/62, Van Gend en Loos, ECLI:EU:C:1963:1.
Today as in the past,the terms ‘constitutional’and‘constitutionalisation’aredefined in various ways. This ar-
ticle builds on a loosedefinition of a ‘constitutional’reading, gathering the interpretationswhich built on the
claims thatEuropean law should be constructed withtools of state constitutionallaw, not public international
law, that the European and the nat ional legal orders should be reduced to a single legal syst em, and that
European lawshould prevail in case of a conflict betweenEuropean law and national law.
In contrast, the two most important cases of how EU law academia was formed nationally, in France and
Germany, have been examined recently. Se eA. -K. Mangold, Gemeinschaftsrecht und deutsches Recht: die
Europäisierung der deutschen Re chtsordnung in historisch- empirischer Sicht (Mohr Siebe ck, 2011); and J.
Bailleux, Penser l’Europe par le d roit: L’inventiondu droit communautaireen France(1945–1990) (Dalloz,2014).
A. Vauchez and S. Mudge, ‘Building Europe on a Weak Field: Law, Economics and Scholarly Avatars in
Transnational Politics’, (2012) 118 American Journal of Sociology,449–492; A. Vauchez, Brokering Europe.
Euro-Lawyersand the Making of a TransnationalPolity (Cambridge University Press,2015); M. Rasmussen,
‘Constructing and Deconstructing“Constitutional”European Law: Some Reflections on How to Study the
History of European Law’, in H. Koch, K. Hagel-Sørensen, U. Haltern, and J. Weiler (eds.), Europe. The
New Legal Realism: Essays inHonour of Hjalte Rasmussen(Djøf, 2010), at 639–660; A. Boergerand M. Ras-
mussen, ‘Transforming European Law: The Es tablishment of the Constituti onal Discourse’, (2014) 10
European ConstitutionalLaw Review, 199–225.
Carving Out an Academic SpaceAugust 2017
© 2017 John Wiley& Sons Ltd.46