Eurolegalism: The Transformation of Law and Regulation in the European Union.

AuthorTarrant, Andy
PositionBook review

Lord Denning, one of Britain's most famous jurists, once stated 'when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back' (Denning in Bulmer v Bollinger). What R. Daniel Kelemen shows in Eurolegalism is that this legal tide is both qualitatively different from the law-making which went before and, paradoxically, given the expressed intent of most European policy-makers to avoid US-style litigation practices, can be described as distinctly American in style (p. 92).

Traditionally, statutory law in European states, including the United Kingdom, created discretion for the executive, subject to very limited overview by courts. As a consequence, implementation relied less on courts, lawyers and private enforcement and more on opaque networks of bureaucrats and other interests that developed and implemented regulatory policies in concert (p. 15).

Conversely, the American way of law could be described as 'adversarial legalism'. Its defining feature was the adoption of detailed prescriptive statutory rules which were subject to frequent private litigation and active judicial review (p. 13). Kelemen argues that the style of EU-law is similar and that the EU's modus operandus for dealing with an issue is to legislate--'it seems that nearly everything the European Union touches turns into law' (p. 19).

Why has the EU become the propagator of a style of law different from that which originated in many of its constituent members? The author argues that the cause is the fragmented structure of governance in the EU (p. 26). He notes that the weakness and fragmentation of the EU's federal institutions parallels that of the federal institutions of the early years of the United States. The lack of resources available to the latter led them to promote litigation-based governance (p. 27).

Similarly, EU institutions have an incentive to promote strict rule-based legislation enforced by private actors and national courts. They do not have a bureaucracy of the requisite scale to direct or to monitor national actors (the total number of European civil servants approximates that typically employed by a mid-size European town (p. 27)). For example, one of the European Commission's existing administrative tasks is to pursue member states which fail to adopt agreed EU legislation. Recent research has found that they are only able to bring about a tenth of such processes...

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