The Legitimacy of the Court of Justice of the European Union
Mark A. Pollack, "The Legitimacy of the Court of Justice of the European Union," in Harlan Cohen and Nienke Grossman, eds., Legitimacy and International Courts (Cambridge University Press, Forthcoming).
57 Pages Posted: 6 Feb 2017 Last revised: 26 Feb 2017
Date Written: February 4, 2017
This paper examines both scholarly debates and empirical evidence about the normative and sociological legitimacy of one of the oldest, busiest and most powerful international courts in the world: the Court of Justice of the European Union (CJEU). With respect to normative legitimacy, the paper identifies and applies three criteria for international court legitimacy, namely that courts should be fair and unbiased, that their rulings should be politically acceptable and legally sound, and that they should operate openly and transparently. While the CJEU has historically enjoyed a high degree of normative legitimacy, I find, recent decades have witnessed the emergence of a vigorous debate regarding overlapping charges of bias, of judicial activism and poor legal reasoning, and of opacity at the Court. By contrast with normative legitimacy, sociological or descriptive legitimacy measures diffuse support for the Court among its various audiences. The study of public attitudes toward the Court, I argue, is highly sensitive to measurement issues, but in general paints a picture of a public support that has been historically widespread but shallow and quite fragile, and I demonstrate that this support has decreased in the past decade, as the Court has been caught up in a broader crisis of EU legitimacy.
Keywords: Legitimacy, Courts, International Courts, European Court of Justice, European Union, Public Opinion, Judicial Activism, Openness
JEL Classification: F53, K33
Suggested Citation: Suggested Citation