Social Legitimacy and the Court of Justice of the EU: Some Reflections on the Role of the Advocate General

Cambridge Yearbook of European Legal Studies, 2012, Forthcoming

University of Cambridge Faculty of Law Research Paper

22 Pages Posted: 22 Sep 2012

See all articles by Alicia Hinarejos

Alicia Hinarejos

McGill University, Faculty of Law

Date Written: March 1, 2012

Abstract

The Court of Justice of the European Union (CJEU, Court of Justice or Court, for short) operates in circumstances that are similar to those of a national constitutional court; at the same time, some significant features set it apart and make it more difficult for the Court of Justice to command the institutional loyalty or public support that national constitutional courts seem to enjoy in Europe. This paper will, first, offer a brief overview of how and why the Court acquired a markedly political, and problematic, role within the judicial and legal system of the Union (Section II). Section III will then examine the different concepts of legitimacy that may be applied to courts and their decisions, focusing more specifically on the social dimension of legitimacy. This paper will argue that the fact that the Court of Justice has to operate in a transnational context leads to a shortfall in its social legitimacy, at least when compared to national constitutional courts in Europe. Finally, Section IV will focus on the figure of the Advocate General as a mechanism that may lend some extra social legitimacy to the Court and its decisions — obviously without solving the problem completely — and that, more generally, may foster dialogue, debate and deliberative democracy in the Union.

Keywords: European Union, European integration, EU law, constitutional law of the EU, Legitimacy, Judicial Legitimacy, Sociological Legitimacy, Social Legitimacy, Deliberative Democracy, Court of Justice of the European Union, CJEU, constitutional courts, Advocate General

JEL Classification: K19, K33, K40

Suggested Citation

Hinarejos, Alicia, Social Legitimacy and the Court of Justice of the EU: Some Reflections on the Role of the Advocate General (March 1, 2012). Cambridge Yearbook of European Legal Studies, 2012, Forthcoming, University of Cambridge Faculty of Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2146138

Alicia Hinarejos (Contact Author)

McGill University, Faculty of Law ( email )

3644 Peel Street
Montreal, Quebec H3A 1W9
Canada

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