Daniel Augenstein (ed.), ‘Integration through Law’ Revisited. The Making of the European Polity

Daniel Augenstein (ed.), ‘Integration through Law’ Revisited. The Making of the European Polity (Edinburgh/Glasgow Law and Society Series, Farnham: Ashgate, 2012), 220 p.

While the political project of European integration is questioned almost on a daily basis, the EU legal order has become a reality for everyone. But what role does law exactly play in the process of European integration? This is ultimately the question central to this volume which revisits the ‘Integration through Law’-project conducted by Mauro Cappelletti, Monica Seccombe and Joseph Weiler in 1986. Back then, making use of comparative methodology, the answer was that law is both the object and the agent of integration. In other words, while law served as an instrument to achieve the political goal of integration, a European legal order was at the very same time to be regarded as the ultimate purpose of the integration process. The answer in 1986 was thus that integration through law and integration of law are strategies pursued side by side in the European Union. The contributions to this volume take this answer as their starting point and draw from a range of different backgrounds, thus reflecting the interdisciplinary nature of the 1986-project.

The chapters in ‘Integration through Law’ Revisited are divided into three groups. The first group of three chapters considers the constitutional frame of European integration. The second group broaches the different conceptions of law in the EU, in the double sense of the concepts of law used to understand the nature of European integration and the ways in which law is portrayed as instrumental in promoting the goals of integration. The last three chapters deal with alternatives for integration through law. Every part also includes a short intervention tying the three chapters together. Last but certainly not least, there is an epilogue by Joseph Weiler, one of the leaders of the original project and arguably one of the most important legal theorists working on the EU. Almost all authors have a link with the European University Institute in Florence and/or with the University of Edinburgh. Because of this set-up, the chapters show a remarkable unity.

Because the relationship between law and political integration is taken as a starting point, the central theme of most contributions is the relationship between law and politics in European integration. This is clear from the three chapters dealing with constitutionalism (understood as a way to limit government and thus to legitimize its power). Interestingly, Cahill in her chapter shows that the relationship between integration and constitutionalism can be framed as both one of consonances and dissonances, thus laying bare a not often noticed tension between the two concepts. The relationship between law and politics also forms the main topic of the chapters dealing with different conceptions of law in European integration, the most philosophical part of the book. For instance, Mac Amhlaigh argues that there is a tension between the objectives of the original integration through law-project and its reliance on a positivist conception of law. He pleads for a Dworkinian alternative. In perhaps the most timely contribution, Veitch takes a critical perspective on European integration by arguing that the centrality of the market has led to juridification and depoliticization. In his own chapter, Augenstein develops an original view on European integration based on the way in which law and society interact in a process which is characterized by a continuous tension between the two. Finally, alternatives for market law and market politics are scrutinized in the third part. Here, there are important chapters on the role of governance and soft law in European integration. Nickel argues for a shift in our thinking about Europe’s administrative and bureaucratic backbone (the variety of agencies, committees and experts lurking in the shadows of rainy Brussels). By democratizing these structures, they may actually become part of the solution to Europe’s democratic deficit instead of being considered its source. Dawson shows how the flourishing of soft law means that law plays a smaller role in European integration than it did in 1986 and that its role should be reconceptualized.

Some chapters of this volume are rather technical and might be difficult to follow for those without a background in EU law (for example the chapter by Avbelj on the absence of hierarchy and the conceptualization of the principle of primacy or supremacy). Others might be disappointing for legal theorists because they fail to develop the insights they offer (for instance Gibbs’ in itself interesting plea for recognizing the symbolic dimension of EU constitutionalism). Also, because of their rather small length (three to six pages), something similar can be said about the three interventions. However, these are only minor criticisms. The contributions to this volume do not offer the usual picture of EU law but instead ask us to consider what is at stake in speaking of law in the context of European integration. This is a fundamental question, a question which needs to be posed especially now that the idea of integration is no longer taken as gospel. ‘Integration through Law’ Revisited forms a valuable source for both EU lawyers interested in a reflection on the very foundations of their field and legal theorists in search for a conceptually rich account of the different roles law plays in European integration.