‘Benign neglect’ on the political scene allowed the European Court of Justice (ECJ) to lay the legal groundwork for the European Community (EC). Likewise social scientists have for long ignored the leverage effect of its integrationist case law. Meanwhile the ECJ’s opinions and judgements are thoroughly observed and widely discussed, and the normative concepts of judicial activism and judicial self-restraint figure prominently both in European politics and European studies – and, apparently, within the ECJ. But the debate still lacks a factual account of what is actually meant by ‘integration through law’ beyond the (nation) state and what happens to the judiciary (as the third branch of government) in the so-called turn from government to governance.
Therefore, I will elaborate a concept of judicial governance which builds upon a political economic understanding of the governance paradigm and which is meant to come to grips with the regulatory role of the ECJ in the context of Europeanization and globalization. Drawing on different strands of the sociology of law (encompassed by discourse theory, systems theory, and field theory) I will conceive of the transformation of the state – including the state of the law as the law of the state – as interaction effects between economy, law and politics and, thus, provide a sociological backing for the judicial governance concept. It will be argued that the governance turn results in a shift from a (more) vertical to a (more) horizontal modus of legal integration. In fact, the European ‘rule of law’ Community (Rechtsgemeinschaft) differs from the classic ‘rule of law’ within nation states (Rechtsstaat) in one important respect: the absence of central enforcement powers. Nevertheless, the ECJ manages to ‘ensure that the law is observed’. Therefore, the practise of judicial governance in the EC can be seen as a way to cope with the transformation of the state and to adapt the rule of law to social change in the era of globalization without thereby making it vain and void.
Empirically, I will retrace the governance turn in the case law of the ECJ and demonstrate how the European economic constitution gradually transforms towards a ‘governance’ constitution. I will particularly focus on legal developments initiated and reinforced not (only) by politicians but (also) by judges, thereby pointing to the salience of judicial governance. To capture both the ‘opening’ and the ‘closing’ of the economic constitution (in a sociological sense) and to facilitate assessments of the scope of globalization within the European context (in a political economic sense), I will compare the internal and the external dimension of the Common Market and argue that a tendency towards judicial governance can be observed at both levels, yet with reversed premises: the ECJ being a motor in the internal market dimension and rather a brake in the foreign trade dimension.
