On one of these random internet-research expeditions probably many of us do while we would have lots of better and more urgent things to do I discovered JOTWELL. The basic idea (see their ‘Mission Statement’ here) of this Journal of Things We Like (Lots) is that in today’s world of legal mass production/publication, it becomes increasingly difficult to stay on top of things. While people are generally able to keep abreast with their field, they find it difficult to judge what is worth reading in neighbouring fields or at a more general level. JOTWELL should thus close this lacuna in US law by providing information as to what is ‘new, important, and interesting in most areas of the law’.
The project of founding a veritable journal for this purpose as these US scholars have done may be beyond the reach of this blog. Still, the underlying idea of creating space for sharing readings merits further consideration. This is what the new category of blog posts on ‘pas obligatoire mais fortement recommandé/POMFR’ is going to be about. Apart from the usual posts observing developments in the case law and new legislation, in these posts a contributor will briefly present one piece of reading (book, article, SSRN paper, blog post etc.) which he or she found of particular interest and then set out why he or she considers this reading could also be of interest for others, be they specialized in the particular domain or as a generally well-drafted, thought provoking contribution to EU law. The main aim is to make it easier for busy blog-readers to keep abreast of some pearls of scholarship that could otherwise easily be overlooked. Furthermore, despite the fact that this blog is generally written in English, it could also be an opportunity – to some extent, at least – to also draw attention to writing on EU law in other languages. We hope you’ll enjoy.
As a first POMFR post I would like to present Gerard Conway’s The Limits of Legal Reasoning and the European Court of Justice (Cambridge/New York, Cambridge University Press, 2012). I have recently encountered this book when looking – as it happens so often – for something completely different, but got fascinated by its central idea. Conway suggests that EU law scholarship generally praises the central role of the Court of Justice of the European Union and the contribution of its legal reasoning. Critical voices, however, are given too little room, and his study purports to fill this lacuna. His claim (as I read it) is that there is a good normative case for judicial restraint by the CJEU. Such restraint would be more coherent with the EU as a now more mature polity, with integration being no longer the only normative concern since the introduction of the Maastricht Treaty.
Without wanting to retell the whole story of the book (there is a lot more to discover, of course), two points appeared to me particularly insightful while reading the book.
Discussing the case law of the Court, the author very carefully dissects the various interpretative approaches and options open to the CJEU. With the help of case studies of landmark decisions, Conway then demonstrates impressively where the reasoning of the Court on the interpretation of EU law seemed to fail to articulate alternative choices and thereby created a sense of inevitability of the Court’s solution (see e.g. chapter 7).
In another remarkable part of the book (chapter 2), Conway fleshes out his claim that EU law scholarship fails to address shortcomings of judicial reasoning of the CJEU with sufficient criticism. In his comprehensive discussion of the pertinent scholarship, he addresses EU law thinkers from Rasmussen via Weiler, Bengoetxea, Maduro, or Arnull to Herzog. Despite the sometimes vivid criticism of the Court in the literature, it becomes visible that there are rather few attempts at countering the interpretative practice of the Court with an opposing normative theoretical framework of interpretation.
Summing up this brief insight, Conway’s Limits of Legal Reasoning is in my view definitely a much-needed, thought-provoking contribution to EU law scholarship, whether you find yourself in agreement with Conway’s conclusions or not. It retells you the foundations which may have been told you as somewhat ‘taken for granted’ while you were studying EU law, and then rattles them thoroughly. A very healthy exercise for uncovering and questioning one’s own presuppositions and biases.