Originalism at the European Court of Justice

Abstract

The point of this chapter is to challenge the coherence of a common narrative about the Court. That narrative would present the Court as activist, and integrationist, and purposive, and complain that it behaves more like a political organ than a legal one, constantly pushing the text beyond what it can bear. The narrative would then go on to suggest that in order to have a more legitimate and limited European legal order, one which respects divisions of power between the EU and Member States, the Court needs to become more cautious and disciplined, and behave more like a traditional court, sticking to the letter of the law and leaving politics to politicians.

On the contrary, it is suggested here that defining characteristics of the Court’s approach to EU law are that it is backward-looking, static and unresponsive to social change. It is based on a vision of the Treaties which was bon ton in right-thinking EU circles 60 years ago – when these were the circles that mattered – but resonates rather weakly with the general public now. It is, in short, originalist.

If one objects to the undoubtedly far-reaching, disruptive and integration-oriented approach to EU law which the Court takes, then one is in substance calling for it to come into the present: to abandon its original conception and develop a new one, more in tune with the times. To become, in short, politically responsive and dynamic in its approach to the law. In a neat reversal of the American debate, Eurosceptics and conservatives really want – whether they know it or not – a more contemporary and political court, which believes in a living constitution. Europhile integrationists, by contrast, want a court that remains loyal to its first truths.