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IS-RUST-EONR-statsvitenskap

Judicial Lawmaking in the Context of Law: Constitutionalizing Europe's Legal Order after the "Constitutional Compromise"?

Awarded: NOK 0.10 mill.

Project Manager:

Project Number:

228331

Project Period:

2013 - 2013

Funding received from:

European law is a decisive factor in European integration - particularly in times of political and economic crisis. At the same time, the European community of law cannot be understood as a mere 'side-product' of political decisions and processes. Rather, it is a specific and self-contained context of integration that political science alone cannot sufficiently analyse with its conventional and generalising models of explanation. To understand 'integration through law' and the role of the European Court o f Justice (ECJ) in this process - this is the central thesis - we have to deal with the European context of law as a distinct functional, historical, and local framework of reasoning and action. Based on the works of Max Weber and Ludwig Wittgenstein I w ill argue for a concept of 'context rationality', a new and promising approach to analytic theory-based integration research. Through an examination of current ECJ fundamental rights jurisdiction, it is shown how a contextual analysis could offer a more p rofound understanding of integration processes by law - not only in Europe. The basic claim is that there is not just one kind of rationality, but a multitude of rationalities that are dependent on certain social contexts. European law constitutes such a context, and should be perceived and analysed as a self-contained and independent sphere of action and thought that generates the impetus for integration. As a consequence, Europe's legal sphere and the processes happening within its boundaries have to be carefully distinguished from politics. Following this line of argument, it will be shown that the perception of the European Court of Justice as an actor engaging in judicial politics or politically motivated expansionist lawmaking has to be rethought. Only by examining and analysing the context of European law as an independent space of rationality, may the role of Europe's high court in the process of integration be adequately captured.

Funding scheme:

IS-RUST-EONR-statsvitenskap