Europe before the Court: A Political Theory of Legal Integration

Utsa Sarkar

Abstract

The European Court of Justice has been the unsung hero of European integration, subtly turning the Treaty of Rome into the founding document of the European Community (EC) and slowly expanding the reach and application of EC law. Political scientists have completely ignored the Court's authority, but legal experts have a tendency to take it for granted. With the use of a theoretical framework created by political scientists and the insights of legal experts, this chapter provides a preliminary theory of community law and politics. The idea of neofunctionalism, which predominated regional integration research in the 1960s, provides a set of independent variables that parsimoniously and clearly explain how the EC's legal integration process works. The main driving factors behind that process are transnational and subnational entities pursuing their own self-interests inside a politically isolated arena, just as neofunctionalism predicts. Its distinguishing characteristics include a gradual shift in the expectations of both governmental institutions and private actors participating in the legal system, a widening of the ambit of subsequent legal decisions according to a functional logic, and a strategic subordination of member states' short-term individual interests to postulated long-term collective interests. Just as neofunctionalists initially predicted for economics, law serves as a cloak for politics. Paradoxically, then, legal institutions' ability to fulfil that role depends on their intentional upholding of the independence of the law.