European Union Legal Methods – Moving Away from Integration
Ulla Neergaard and Ruth Nielsen (eds.), European Legal method ‐ Towards a New European Legal Realism? (DJOF Publishing, 2013), pages 163‐188
25 Pages Posted: 20 Oct 2013
Date Written: October 19, 2013
Notwithstanding the permanent state of crises of the European Union (EU or Union) in the past seven years, EU law continues to govern the legal relationships of individuals and Member States in ever more areas. Union law is self-reinforcing in the sense that it is constructed to increase in scope and relevance when it is used. It determines, displaces and intimately interlocks with national law. Indeed, Union law has become so omni-influential that it is no longer possible to study legal methods in EU Member States without understanding the methods deployed to interpret and explain Union law (EU legal methods). Additionally, international law is changing in a way that makes it more directly relevant to the legal heritage of individuals, as well as to the domestic exercise of public power. The legal landscape in Europe, in which practitioners and scholars have to find their way, has become increasingly compound. It is characterized by pluricontextuality, which makes it unavoidable to look beyond the boundaries of one’s own legal order in order to read and understand relevant external legal norms. This increased relevance of legal norms external to the domestic legal context stands in sharp contrast to a public opinion that is characterized by a growing dissatisfaction with the externalization of power, be it Europeanization or globalization. External authorities, such as the EU and the European Court of Human Rights (ECtHR), face growing public resistance.
The mismatch between public resistance and normative influence of external norms puts pressure on domestic public actors, including political authorities and the judiciary to adequately reason why they are engaging with external authorities and how domestic law relates to them. This calls inter alia for convincing legal methods to argue in a comprehensible fashion why certain external authorities have force in a specific situation or why this is not the case. Following the European Legal Methods project, ‘legal method’ is here understood as ‘the doctrine of the sources of law and their interpretation’ (doctrinal method). This paper aims specifically to explore doctrinal legal methods in the sub-discipline of EU law and consider the following questions: Why and how is the legal method of EU law different from that of national or international law? What legal method(s) do we need in a legal environment influenced by globalisation and Europeanization (postnational setting)? Do we need new or different legal methods? What could be the commonly agreed starting point for legal reasoning?
Suggested Citation: Suggested Citation