lecture 7 Flashcards
Kelemen: the process of European integration is encouraging the spread of a distinctive mode of governance = eurolegalism
What does Kelemen mean by this?
Eurolegalism is a mode of governance that relies on:
* detailed transparent rules;
* legalistic and adversarial approaches to enforcement and
dispute resolution;
* active judicial review of administrative action;
* empowerment of private actors to enforce legal norms
Eurolegalism -> is that it leads to the judicialization of politics
Eurolegalism can be seen as a European variant of what in the
American context has been termed ‘adversarial legalism’ (‘the American way of law’)
Apposite of adversarial
consensual
adversarial = suing/going to court
Judicialization of politics
What is meant by it?
greater reliance on courts and judicial means for addressing core moral predicaments, public policy questions and political controversies
Kelemen (citing Hirschl)
other definitions of judicialization
- the process by which courts and judges come to make public policies that were previously made by legislatures and executives
- expansion of the judiciary vis-à-vis the other powers - the executive and the legislative
- courts increasingly playing a politically significant role
- judges resolving contentious issues of an outright political nature and significance
- judges not just applying the law but also acting as law-makers
Critique of the judicialization of politics
judges aren’t elected.
What Kelemen concludes is that this criticism is understandable, but he doesn’t feel like it is a threat to democracy, but it is changing the nature of democracy in EU member states
Explain why critics might argue that Eurolegalism is undermining democracy in Europe
study question
- judges aren’t elected
- courts may annul legislative acts of division whcih have been taken by democratically chosen officials
- - That it will make the legislative process slower and more costly. Stakeholders don’t always have consensus in a transparent way. ➞ but overall not a threat
but is this necessarily undemocratic and threatening? -> the process is long a diligent, so it doesn’t just happen without reason. legislation could just be ‘bad’, and therefore it had to be changed
Kelemen’s response to the criticism about eurolegalism undermining democracy in europe
= they are performing a task that they are asked to perform. So it attaches value to the rule of law. Democratically elected bodies have asked them to perform these acts ➞ they sub-fer democracy
These democratic majorities are the ones which shape the position of courts, therefore courts are also ‘democratic’. The judicialization of politics, also forces states to be more open and transparent, so how is that threatening..? It promises to improve democracy across the EU
Arguments about whether or not judicial power is undemocratic (US)
Argument
* Judicial activism turns the judiciary into a legislative body that is not accountable to the people
* Most judges are not elected, cannot be sent away
* Judicial power becomes political power
Counter argument
* Majority needs to be subject to limits to protect minorities
* Judicial power is constrained by procedure: initiative with ligigants, pre existing legal norms…
* Legislature and executives sometimes refrain from decision
Is the increased power of judges in Europe a threat to democracy?
Frans van Waarden vs Daniel Kelemen
Frans van Waarden: Yes (Dutch sociologist)
Because in the EU there are fewer checks and balances on judicial power than in the US. It is hard for politicians to challenge court decisions because 1) often no clear majorities in parliament and 2) the judiciary has a strong reputation of being non-partisan and objective; high level of legitimacy of
court decisions
Daniel Kelemen: No
Because judges perform tasks they are asked to perform by democratically elected institutions (courts as trustees). Courts are responsive to democratic inputs, at least indirectly (courts as democratic bodies).
* However: Eurolegalism changes the character of democracy
Why Eurolegalism?
Explanations Kelemen
- There is a broader global trend toward judicialization of politics
- Two causal mechanisms associations directly
a. Page 57: economic liberalization ➞ so where the transparency comes from
b. Political fragmentation: page 57 ➞ caused because the power of the regulation shifts. Political power in the EU is fragile, horizontal and vertical. Vertically (EU and MS) ➞ makes it difficult to control the bureaucratic agents
Broader global trend toward judicialization of politics
- Democracy
- Rise of principle of human rights
- Use of courts by interest groups and opposition
- Ineffective majoritarian institutions
- Perceptions of the policy-making institutions
- (Willful) Delegation by executive and legislature
(Source: Tate (1995), Why the expansion of legal power?)
economic liberalization
(associated with establishment single market) has undermined co-operative, informal and opaque approaches at the national level, and simultaneously encouraged the introduction of more formal, transparent, juridical forms of regulation at EU level.
political fragmentation
(in combination with limited administrative capacity and powerful courts) encourages EU lawmakers to introduce directives and regulations with strict substantive and procedural requirements and to encourage judicial enforcement – including by private parties – of these legal norms
National regulatory styles
Kelemen: Eurolegalism also affects traditional approaches to regulation at the national level
Regulatory style: a regulation is the mechanism by which a style of such is controlled. Also includes other things ➞ it is a characteristic way of regulating rules and policymaking, implementation and enforcement
National styles: if a certain style prevails in a country, we can speak of a national regulatory style
* Used to rely on cooperation, but now these traditional styles are replaced by formal norms with expanded opportunities (due to eurolegalism)
The national regulatory styles are moving in a way of the US styles, due to the causal mechanisms from above
Contrasting regulatory styles
Adversarial legalistic (US) vs Informal cooperative (Japan, NL, UK)
Which style of regulation would you expect to be most effective in regulating industrial water pollution?
➞ there has been a study on this; Verwij. Dispite the strict legislation, the Great Lakes were still dirtier
* The states behaved in a certain way. Some firms had to be forced to act in a certain way. This slowed the effect of the implementation down.
* In the EU contexts, the firms voluntarily invested in increasing the water.
* ➔ the consensual was more effective than the analytical style
Do you think a consensual or informal cooperative style is always more effective?
= no. It depends on the regulatory arena.
Explanations for the convergence of national policies and policy styles
- Policy convergence as a result of international regimes and
institutions (EU) - Policy emulation: convergence may occur as a result of
learning processes in which countries learn from
experiences in other countries -
Parallel but autonomous domestic forces: convergence is
caused by domestic factors, which however happen to be the
same in each country
convergence = becoming more similar
There are also other factors mentioned by Kelemen -> multi-national firms
The other face of Eurolegalism
Bastings et al
Two dimensions enforcement styles:
* Formalism: how do officials deal with
the rules? (more/less formalism,
flexibility)
* Hierarchy: how do officials interact
with regulatees? (more/less hierarchy,
coercion)
4 types of styles:
* passive
* persuasive
* insistent
* authoritative
The Netherlands have moved from a passive to an insistent enforcement style, the German style has
remained insistent.
Can we conclude from this that the EU Directive has led to convergence of national enforcement
styles?
= yes and no.
It seems like there has been convergence, but when you look closer at it you see that there are still a lot of differences
What is the criticism of Bastings, Mastenbroek and Versluis on Kelemen? Do you agree with that
criticism? Why (not)?
Kelemen argues that EU law leads to a uniform shift toward legalistic, court-enforced, and adversarial styles across Europe.
Bastings et al. say this is too simplistic. They show that:
- Convergence in enforcement styles can look different beneath the surface.
- The Dutch style is legalistic in formality, but still avoids conflict and emphasizes cooperation.
- This means legalism can take on different national forms, shaped by local cultures and institutions
Legal pluralism
The state is but one source of regulation, and for individuals engaged in social interaction, rules emanating from the state may be less well known, less clear and less pressing than ‘informal’ rules of the social fields (family, workplace, …) to which they belong.
