Governing With Judges: Constitutional Politics in Europe

Rating:
Summary: The Best Explanation for the European Court's Power
Review: For Stone Sweet, initially, diplomatic representatives of member state governments bargain rationally to create institutions that begin to take on a life of their own, eventually resembling those of a domestic polity. Thus, Stone Sweet shows how theories of international relations and intergovernmentalism become less and less relevant to the European Union, as the reach of EU law grows. Because any explanation for the power of the European Court of Justice relies on institution building and institutional effects, the most powerful current theories of EU politics are "institutionalist" in nature, bridging the divide between domestic and international politics.

For Stone Sweet, these institutions (principles, norms, rules and procedures, which make up the "judicialization" of policy-making) can themselves be taken as explanatory variables that "organize ongoing normative deliberations that seek to define and redefine the nature of the community" (10). In other words, institutions have the power to "constitute" individuals and construct their preferences to some degree. That is, institutions shape not only strategies, but also goals and norms of behavior, arising, in Stone Sweet's case, from constitutionally binding case law.

Much of the earlier work on EU integration, including neofunctionalism, had claimed that actors could be socialized into EU processes and identities, but did not offer much in the way of testable causal mechanisms. Stone Sweet can thus be commended for giving us a concrete causal model explaining how "judicialization is the process by which legislators absorb the behaviour norms of constitutional adjudication, and the grammar and vocabulary of constitutional law, into those repertoires of reasoning and action that constitute political agency" (204). Thus, when studying the (initially economic) impetus for European unification, Stone Sweet shows how studying the (rational) economic and political interests of member state governments alone is a poor starting point for understanding nature and effects of the emerging European polity.

These same economic interests are at the root of Stone Sweet's second key contribution to the EU literature; namely, his support for a renewed use of neofunctionalism, a neo-neofunctionalism, if you will. Originally, neofunctionalism took taken heavy criticism, because it allegedly postulated an automatic rationality and inevitability to the integration process, without offering falsifiable propositions about when integration might slow down or even reverse, due to political change.

These are heavy allegations, but Stone Sweet's use of neofunctionalism counters these charges quite well, by specifying and demonstrating a normatively-based "rationality" to the process (a community of norms that frames rational action), offering a theory of how this process works (constitutional conflict, leading to delegation to the constitutional court, leading to constitutional decision-making/rule-making, leading to "judicialization"), and carefully assessing the feedback effects of institutional integration on domestic structures: "in today's multi-tiered European polity, the sovereignty of the legislature, and the primacy of national executives, are dead" (193). As the new standard-bearer of EU functionalism, Stone Sweet makes a persuasive case that IR theory cannot explain the "top-down" nature of EU constitutional politics; that is, how initially rational economic preferences turned into a seemingly inexorable process of legal dialogue, "socializing more and more actors-private litigants, judges and politicians-into the system, encouraging more use" (165). Through the vehicle of "rights," the ECJ used the logic of economic integration to enhance its role as dispute resolver. Initially, member state governments had no interest in supranational rights protections: "their purpose was not so much to create rights claims for individuals, as to remove potential sources of distortion within the common market" (171). But to fulfill this "function," rights claims had to be put into action, leading to the process of judicial governance. Looking at member state preferences alone cannot explain this phenomenon, and thus Stone Sweet's supranational functionalism proves superior to the intergovernmentalism of a scholar like Moravcsik.