Europe before the court: A political theory of legal integration

International Organization

Volumn 47, Issue 1, 1993, Pages 41-76

  Burley, Anne Marie ^a   Mattli, Walter ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34248249774     PISSN: 00208183     EISSN: 15315088     Source Type: Journal    
DOI: 10.1017/S0020818300004707     Document Type: Article

References (165)

1. The reference is to the title of Haas's magisterial study of early integration efforts focused on the European Coal and Steel Community. See Ernst B. Haas, The Uniting of Europe (Stanford, Calif.: Stanford University Press, 1958).
2. See, for example, Robert Keohane and Stanley Hoffmann, “Conclusions: Community Politics and Institutional Change,” in William Wallace, ed., The Dynamics of European Integration (London: Pinter, 1990), pp. 280–81.
3. The definitive account of the “constitutionalization” of the treaty is an article by Eric Stein, “Lawyers, Judges, and the Making of a Transnational Constitution,” American Journal of International Law 75 (January 1981), pp. 1–27.
4. For a more recent account from an ECJ judge, see G. Federico Mancini, “The Making of a Constitution for Europe,” Common Market Law Review, vol. 26,1989, pp. 595–614.
5. This apparent indifference to larger political questions has been so profound as to earn reproach even from a member of·the ECJ itself. Judge Ulrich Everling offered his own account of the relationship between the Court and the member states in 1984, beginning, “The central problem of the European Community is the tension which exists between it and its Member States.” He further observed in a footnote that “this problem is largely ignored and underestimated in the legal literature.” See Ulrich Everling, “The Member States of the European Community Before Their Court of Justice,” European Law Review, vol. 9, 1984, p. 215.
6. See also Everling's works “Das Europäische Gemeinschaftsrecht im Spannungsfeld von Politik und Wirtschaft” (EC law in tension between politics and economics), in Wilhelm G. Grewe, Hans Rupp, and Hans Schneider, eds., Europäische Gerichtsbarkeit und nationale Verfassungsgerichtsbarkeit: Festschrift zum 70. Geburtstag von Hans Kutscher (European jurisdiction and national constitutional jurisdiction: Festschrift on the 70th birthday of Hans Kutscher) (Baden-Baden: Nomos, 1981), pp. 155-87.
7. “Europäische Politik durch Europaisches Recht?” (European politics through European law?), EG-Magazin, February 1984, pp. 3–5.
8. A noteworthy exception is Stuart Scheingold, The Rule of Law in European Integration (New Haven, Conn.: Yale University Press, 1965). Other early works on the Court will be discussed below.
9. The one major exception, discussed below, is Geoffrey Garrett, “International Cooperation and Institutional Choice: The European Community's Internal Market,” International Organization 46 (Spring 1992), pp. 533–60.
10. See also Geoffrey Garrett and Barry Weingast, “Ideas, Interests and Institutions: Constructing the EC's Internal Market,” manuscript, Dept. of Political Science, Duke University, Durham, N.C., 1992.
11. After reviewing the events of the late 1980s and the new flurry of interest in the literature, Keohane and Hoffmann resurrected neofunctionalism and restored it to the agenda of EC research, reminding their readers of its more sophisticated aspects. See Keohane and Hoffmann, “Conclusions,” p. 286 ff.
12. In the same article, drawing on the work of Joseph Weiler and Renaud Dehousse, Keohane and Hoffmann also acknowledge that the “Community legal process has a dynamic of its own,” (p. 278).
13. They fail to put these two insights together, however. An argument that neofunctionalists mistakenly overlooked the ECJ is found in Philippe C. Schmitter, “Interests, Powers and Functions: Emergent Properties and Unintended Consequences in the European Polity,” in Peter Lange and Gary Marks, eds., The Future European Polity, forthcoming.
14. Legal integration does not necessarily need to take place within the framework of supranational institutions, although that is our focus here. For a noninstitutional analysis of the dynamics of legal integration among liberal states, see Anne-Marie Burley, “Liberal States: A Zone of Law,” presented at the annual meeting of the American Political Science Association, Chicago, 3–6 September 1992.
15. Stein, “Lawyers, Judges, and the Making of a Transnational Constitution,” p. 3.
16. Martin Shapiro, “Comparative Law and Comparative Politics,” Southern California Law Review 53 (January 1980), p. 538.
17. For a similar view, see Karl Kaiser, “L'Europe des Savants. European Integration and the Social Sciences,” Journal of Common Market Studies 4 (October 1965), pp. 36-46, esp. pp. 39-40.
18. Justice Lord Mackenzie Stuart writes: “It is the Treaties and the subordinate legislation which have a policy, and which dictate the ends to be achieved. The Court only takes note of what has already been decided.” See Mackensie Stuart, The European Communities and the Rule of Law (London: Stevens, 1977), p. 77.
19. For a similar argument, see Robert Lecourt, L'Europe des Juges (The Europe of the judges) (Brussels: E. Bruylant, 1976), p. 237.
20. Mancini, “The Making of a Constitution for Europe,” p. 600.
21. For variations on the same theme, see Lecourt, L'Europe des Juges, pp. 241-47.
22. Pierre Pescatore, The Law of Integration (Leyden: Sijthoss, 1974), pp. 89-90.
23. Hans Kutscher, “Methods of Interpretation: As Seen by a Judge at the Court of Justice,” presented at the Judicial and Academic Conference, Luxembourg, 1976, as cited by Hjalte Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dortrecht: M. Nijhoff, 1986), pp. 179-83.
24. Ulrich Everling, “The Court of Justice as a Decisionmaking Authority,” Michigan Law Review 82 (April/May 1984), pp. 1294-310.
25. Mario Bettati, “Le ‘law-making power’ de la Cour” (The law-making power of the court), Pouvoirs, no. 48, 1989, pp. 57-70.
26. Ami Barav, “The Judicial Power of the European Economic Community,” Southern California Law Review 53 (January 1980), pp. 461-525.
27. Writers in this tradition point frequently to Article 4 of the Rome treaty, which lists the court as one of the institutions to carry out the tasks entrusted to the community by member states who, according to the treaty's preamble, are “determined to lay the foundations of an ever closer union among the people of Europe.” See Treaties Establishing the European Communities (Luxembourg: Office for Official Publications of the European Communities, 1987).
28. Rasmussen, On Law and Policy in the European Court of Justice, pp. 195-96, n. 127.
29. Joseph Weiler, “The Community System: The Dual Character of Supranationalism,” Yearbook of European Law, vol. 1, 1981, pp. 268-306.
30. In his most recent article, Weiler retreats from his earlier causal proposition, claiming instead to offer a “synthesis and analysis & in the tradition of the ‘pure theory of law’ with the riders that ‘law’ encompasses a discourse that is much wider than doctrine and norms and that the very dichotomy of law and politics is questionable.” See Joseph Weiler, “The Transformation of Europe,” Yale Law Journal 100 (June 1991), p. 2409.
31. Rasmussen, On Law and Policy in the European Court of Justice, p. 3.
32. Koen Lenaerts, “The Role of the Court of Justice in the European Community: Some Thoughts About the Interaction Between Judges and Politicians,” University of Chicago Legal Forum, 1992, forthcoming.
33. We borrow this expression from Joseph Weiler, “Community, Member States, and European Integration: Is the Law Relevant?” Journal of Common Market Studies 21 (September-December 1982), pp. 39-56.
34. Paul Taylor, The Limits of European Integration (New York: Columbia University Press, 1983), p. 280.
35. Stuart A. Scheingold, The Law in Political Integration: The Evolution and Integrative Implications of Regional Legal Processes in the European Community, Occasional Papers in International Affairs, no. 27, (Cambridge, Mass.: Center for International Affairs, Harvard University, 1971).
36. See Garrett, “International Cooperation and Institutional Choice”
37. Garrett and Weingast, “Ideas, Interests, and Institutions.”
38. For a discussion of the “rationalist” approach versus the “reflectivist” approach to institutions, see Robert O. Keohane, “International Institutions: Two Approaches,” International Studies Quarterly 32 (December 1988), pp. 379-96.
39. Garrett, “International Cooperation and Institutional Choice,” p. 556.
40. See Garrett and Weingast, “Ideas, Interests, and Institutions, p. 27.
41. Garrett, “International Cooperation and Institutional Choice,” pp. 540 and 557.
42. Garrett and Weingast, “Ideas, Interests, and Institutions,” p. 27.
43. See Garrett, “International Cooperation and Institutional Choice,” p. 557.
44. Garrett and Weingast, “Ideas, Interests, and Institutions,” pp. 27-28.
45. Garrett, “International Cooperation and Institutional Choice,” p. 558.
46. For a compelling overview of the evidence, see Stein, “Lawyers, Judges, and the Making of a Transnational Constitution,” p. 25.
47. Andrew Moravcsik, “Negotiating the Single European Act: National Interests and Conventional Statecraft in the European Community,” International Organization 45 (Winter 1991), pp. 19-56.
48. Ironically, the authors themselves explicitly disavow the usefulness of neofunctionalism to the understanding of Europe 1992; see Wayne Sandholtz and John Zysman, “1992: Recasting the European Bargain,” World Politics 42 (October 1989), pp. 95-128.
49. See Wayne Sandholtz, “Choosing Union: Monetary Politics and Maastricht,” this issue of International Organization.
50. See Haas, The Uniting of Europe.
51. See in particular the following works by Ernst Haas: “International Integration: The European and the Universal Process,” International Organization 15 (Summer 1961), pp. 366-92.
52. Beyond the Nation-State (Stanford, Calif.: Stanford University Press, 1964); “Technocracy, Pluralism, and the New Europe,” in Stephen Graubard, ed., A New Europe? (Boston: Houghton Mifflin, 1964) reprinted in Joseph Nye, International Regionalism (Boston: Little, Brown, 1968), pp. 149-79 (our citations refer to this latter version).
53. “The Study of Regional Integration: Reflection on the Joy and Anguish of Pretheorizing,” International Organization 24 (Autumn 1970), pp. 607-46.
54. See also Ernst B. Haas and Phillipe Schmitter, “Economic and Differential Patterns of Political Integration: Projections About Unity in Latin America,” International Organization 18 (Autumn 1964), pp. 705-37.
55. Haas, “The Study of Regional Integration,” p. 610.
56. Haas, “International Integration,” p. 366.
57. See also, Haas, The Uniting of Europe, p. 12.
58. Stuart A. Scheingold and Leon N. Lindberg, Europe's Would-be Polity (Englewood Cliffs. N.J.: Prentice-Hall, 1970), p. 92.
59. We borrow this expression from Reginald Harrison, Europe in Question: Theories of Regional International Integration (London: Allen and Unwin, 1974), p. 80.
60. Haas, The Uniting of Europe, p. xiv.
61. Haas, Beyond the Nation-State, p. 34.
62. Haas, The Uniting of Europe, p. xiv, emphasis added.
63. Note that the idea of spillover is not new. There are numerous variations on the theme. Claude notes that writing before World War I, Paul S. Reinsch adumbrated a “concentric circles” concept of International Organization, according to which the idea of multilateral attack upon world problems will function like a pebble dropped into the international pond, giving rise to a series of circles of cooperation which will expand from a limited area of technical agencies to vast circumference of a global political and security organization (Public International Union, Boston, Ginn, 1911). Paul Hoffman has suggested that “the good thing about the spirit of unity is that it ramifies out; when you cultivate habits of unity in the economic sphere, they naturally spread over to the political sphere and even to the military sphere when the need arises.” (Peace Can Be Won, New York, Doubleday, 1951, p. 62).
64. See Inis L. Claude, Swords into Plow Shares, 4th ed. (New York: Random House, 1971, p. 384).
65. Leon Lindberg, The Political Dynamics of the European Economic Integration (Stanford, Calif.: Stanford University Press, 1963), p. 10.
66. We follow George's suggestion of strictly distinguishing those two types of spillover. See Stephen George, Politics and Policy in the European Community (Oxford: Clarendon Press, 1985), pp. 16-36. George also offers a compelling illustration of functional spillover. He argues that the removal of tariff barriers will not in itself create a common market. The fixing of exchange rates also is required in order to achieve that end. But, the surrender of control over national exchange rates demands the establishment of some sort of monetary union, which, in turn, will not be workable without the adoption of central macroeconomic policy coordination and which itself requires the development of a common regional policy, and so forth (pp. 21-22).
67. Haas, The Uniting of Europe, p. 297.
68. Haas, “Technocracy, Pluralism, and the New Europe,” p. 165.
69. Haas, Beyond the Nation-State, p. 48.
70. “The European executives [are] able to construct patterns of mutual concessions from various policy contexts and in so doing usually manage to upgrade [their] own powers at the expense of the member governments.” Haas, “Technocracy, Pluralism, and the New Europe,” p. 152.
71. David Mitrany, A Working Peace (Chicago: Quadrangle Books, 1966), p. 99.
72. Besides Mitrany's work, see also James Patrick Sewell, Functionalism and World Politics, (Princeton, N.J.: Princeton University Press, 1966)
73. Ernst Haas, Beyond the Nation-State, especially chaps. 1-4; and Claude, Swords into Plowshares, especially chap. 17.
74. Haas, “Technocracy, Pluralism, and the New Europe,” p. 152, emphasis added.
75. Haas, “International Integration,” p. 102.
76. Joseph Nye, “Patterns and Catalysts in Regional Integration,” International Organization 19 (Autumn 1965), pp. 870-84.
77. See Stanley Hoffmann, “Obstinate or Obsolete? The Fate of the Nation-State and the Case of Western Europe,” Daedalus 95 (Summer 1966), pp. 862-915
78. Stanley Hoffmann, “Discord in Community: The North Atlantic Area as a Partial System,” reprinted in Francis Wilcox and Henry Field Haviland, eds., The Atlantic Community: Progress and Prospects (New York: Praeger, 1963).
79. Ernst B. Haas, The Obsolescence of Regional Integration Theory (Berkeley: University of California Press, 1975).
80. Ernst B. Haas, “Turbulent Fields and the Theory of Regional Integration,” International Organization 30 (Spring 1976), pp. 173-212.
81. Haas and Schmitter, “Economic and Differential Patterns of Political Integration,” p, 710.
82. For a cross-section of the résumés of both judges and advocates general, see L. Neville Brown and Francis Jacobs, The Court of Justice of the European Communities (London: Sweet and Maxwell, 1977), pp. 33-48.
83. It may seem odd to characterize lower national courts as subnational actors, but as discussed below, much of the Court's success in creating a unified and enforceable community legal system has rested on convincing lower national courts to leapfrog the national judicial hierarchy and work directly with the ECJ. See Mary L. Volcansek, Judicial Politics in Europe (New York: Peter Lang, 1986), pp. 245-67
84. John Usher, European Community Law and National Law (London: Allen and Unwin, 1981).
85. Rasmussen, On Law and Policy in the European Court of Justice, p. 245.
86. See Brown and Jacobs, The Court of Justice of the European Communities, pp. 180-81.
87. Henry Schermers, “Special Foreward,” Common Market Law Review, no. 27, 1990, pp. 637-38.
88. Prominent examples include The Common Market Law Review, The European Law Review, Yearbook of European Law, Legal Issues of European Integration, Cahier de Droit Europeen, Revue trimestrielle de Droit Europeen, and Europarecht. A vast number of American international and comparative law journals also publish regular articles on European law.
89. See Case 25/62, Plaumann & Co. v. Commission of the European Economic Community, European Court Reports (ECR), 1963, p. 95.
90. See also Hjalte Rasmussen, “Why is Article 173 Interpreted Against Private Plaintiffs?” European Law Review, no. 5, 1980, pp. 112-27.
91. Case 26/62, N.V. Algemene Transport & Expeditie Ondememing Van Gend & Loos v. Nederlandse Administratie der Belastingen, ECR, 1963, p. 1.
92. See Stein, Lawyers, Judges, and the Making of a Transnational Constitution.
93. Case 57/65, Alfons Lütticke GmbH v. Hauptzollamt Saarlouis, ECR, 1986, p. 205.
94. See Case 36/74, B.N.O. Walrave and L.J.N. Koch v. Association Union Cycliste Internationale, ECR, 1974, p. 1405
95. Case 149/77, Gabrielle Defrenne v. Societe Anonyme Beige de Navigation Aerienne Sabena, ECR, 1978, p. 1365.
96. See Case 9/70, Franz Grad v. Finanzamt Traunstein, ECR, 1970, p. 825
97. Case 411/74, Yvonne Van Duyn v. Home Office, ECR, 1974, p. 1337.
98. Bundesfinanzhof, decision of 25 April 1985 (VR 123/84), Entscheidungen des Bundesfinanzhofes, vol. 143, p. 383 (noted by H. Gerald Crossland, European Law Review, 1986, pp. 476-79).
99. The decision was quashed by the Bundesverfassungsgericht (the German Constitutional Court) in its decision of 8 April 1987 (2 BvR 687/85), [1987] Recht der Internationalen Wirtschaft 878. See also the Cohn Bendit case, Conseil d'Etat, 22 December 1978, Dalloz, 1979, p. 155.
100. See Case 152/84, Marshall v. Southhampton and South West Hampshire Area Health Authority (Teaching), Common Market Law Review, vol. 1, 1986, p. 688
101. Case 152/84, ECR, 1986, p. 737.
102. On the relationship between Marshall and Marleasing, See Hjalte Rasmussen, “The Role of the Court in the European Community: Towards a Normative Theory of Interpretation of Community Law,” University of Chicago Legal Forum, forthcoming.
103. Van Duyn, p. 1342.
104. Mancini describes this process in great detail; see Mancini, “The Making of a Constitution for Europe,” pp. 605-6.
105. See also Pescatore, The Law of Integration, p. 99
106. Rasmussen, On Law and Policy in the European Court of Justice, p. 247.
107. More prosaically, but no less effectively for the construction of a community legal system, the Article 177 procedure offers “clever lawyers and tacticians … the possibility of using Community law to mount challenges to traditional local economic restrictions in a way which may keep open a window of trading opportunity whilst the legal process grinds away.” In a word, delay. See L. Gormley, “Recent Case Law on the Free Movement of Goods: Some Hot Potatoes,” Common Market Law Review, vol. 27, 1990, pp. 825-57.
108. Haas, Beyond the Nation-State, p. 128.
109. Rasmussen describes a “generous information campaign,” as a result of which a steadily increasing number of national judges traveled to the Palais de Justice, at the ECJ's expense, for conferences about the court and the nature of the Article 177 procedure.
110. See Rasmussen, On Law and Policy in the European Court of Justice, p. 247.
111. Mancini, “The Making of a Constitution for Europe,” p. 605.
112. In this regard, Mary Volcansek offers an interesting discussion of the various “follow-up mechanisms” the ECJ employed to further an ongoing partnership with the national courts, including positive feedback whenever possible and gradual accommodation of the desire occasionally to interpret community law for themselves. See Volcansek, Judicial Politics in Europe, pp. 264-66.
113. Martin Shapiro, “The European Court of Justice,” in Alberta M. Sbragia, ed., Euro-politics: Institutions and Policymaking in the New European Community (Washington, D.C.: Brookings Institution, 1991), p. 127.
114. Weiler, “The Transformation of Europe,” p. 2426.
115. Van Gend & Loos, p. 22.
116. See, e.g., Lütticke, p. 10, where the ECJ announced that the direct effect of the treaty article in question depends solely on a finding by the national court; see also Case 33/76 Rewe-Zentralfinanz Gesellschaft and Rewe-Zentral AG v. Landwirtschaftskammer fur das Saarland, ECR, 1989, p. 1998; and Case 45/76 Comet BV v. Produktschap voor Siergewassen, ECR, 1976, pp. 2052-53.
117. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. [1978] ECR 629.
118. Rasmussen, On Law and Policy in the European Court of Justice, p. 245.
119. See Koenrad Lenaerts, “The Role of the Court of Justice in the European Community: Some Thoughts About the Interaction Between Judges and Politicians,” University of Chicago Legal Forum, forthcoming.
120. For a number of specific examples, see Everling, “The Court of Justice as a Decisionmaking Authority,” pp. 1299-1301.
121. The “Jean Monnet Action,” a program of the European Commission, has recently created fifty-seven new full-time teaching posts in community law as part of a massive program to create new courses in European integration.
122. Pescatore, The Law of Integration, pp. 89-90.
123. Mancini, “The Making of a Constitution for Europe,” p. 600.
124. This is the way Joseph Weiler describes the supremacy cases, again tacitly emphasizing a necessary logical progression. See Weiler, “The Transformation of Europe,” p. 2414.
125. Neil Nugent, The Government and Politics of the European Community (Durham, N.C.: Duke University Press, 1989), p. 151.
126. See “Council Directive on Voting Rights for Community Nationals in Local Elections in Their Member States of Residence,” Official Journal, 1988, C 256/4, and Amended Proposal, Official Journal, 1989, C 290/4.
127. For further reading, see Paul Leleux, “The Role of the European Court of Justice in Protecting Individual Rights in the Context of Free Movement of Persons and Services,” in Eric Stein and Terrence Sandalow eds., Courts and Free Markets, vol. 2 (Oxford: Clarendon Press, 1982), pp. 363-427.
128. Henry Schermers, “The Role of the European Court of Justice in the Free Movement of Goods,” in Eric Stein and Terrence Sandalow, eds., Courts and Free Markets, vol. 1, pp. 222-71.
129. See Haas, “International Integration,” p. 366
130. Haas, The Uniting of Europe, p. 12.
131. Weiler, “The Transformation of Europe,” p. 2425.
132. Rasmussen, On Law and Policy in the European Court of Justice, pp. 275-81.
133. As is now widely recognized, Belgium, Germany, and the Netherlands all filed briefs strongly objecting to the notion of direct effect in Van Gend & Loos. None subsequently suggested revisiting that decision.
134. The first of these cases was Case 48/74, Mr. Charmasson v. Minister for Economic Affairs and Finance, ECR, p. 1383, involving a suit by a French banana importer challenging import restrictions imposed by the French banana market organization; the second was the Potato case, Case 231/78, Commission v. UK, ECR, 1979, p. 1447, an action by the commission against Britain for the activities of its potato market organization in which the French government supported the British position against the interests of its own potato exporters. The final installment in this saga was a challenge by the commission against the French again, this time for restrictions on sheepmeat from Britain. See Case 232/78, Commission v. France, ECR, 1979, p. 2729.
135. For a more detailed account of the arguments of the various parties in these cases, see Rasmussen, On Law and Policy in the European Court of Justice, pp. 281-84 and 338-45.
136. Case 22/70, Commission of the European Communities v. Council of the European Communities, ECR, 1971, p. 363.
137. Pescatore, The Law of Integration, p. 88.
138. See, for example, Martin Shapiro, “The Constitution and Economic Rights,” in M. Judd Harmon, ed., Essays on the Constitution of the United States (Port Washington, N.Y.: Kennikat Press, 1978), pp. 74-98.
139. See F. Dumon, “La jurisprudence de la Cour de Justice. Examen critique des methodes d'interpretation” (The jurisprudence of the ECJ. Critical study of methods of interpretation) (Luxembourg: Office for Official Publications of the European Communities, 1976), pp. 51-53
140. A.W. Green, Political Integration by Jurisprudence (Leiden: Sijthoff, 1969), pp. 26-33 and 498
141. Clarence Mann, The Function of Judicial Decision in European Economic Integration (The Hague: Martinus Nihjoff, 1972), pp. 508-15
142. Scheingold, The Rule of Law in European Integration, pp. 263-85
143. Stein, “Lawyers, Judges, and the Making of a Transnational Constitution, passim.
144. For a discussion of “the oral tradition” of criticism that European scholars refuse publicly to acknowledge, see Rasmussen, On Law and Policy in the European Court of Justice, pp. 147-48 and 152-54.
145. Shapiro, “Comparative Law and Comparative Politics,” p. 542.
146. Pescatore, The Law of Integration, p. 89.
147. Van Gend & Loos.
148. Mancini, “The Making of a Constitution,” p. 606.
149. The classic study documenting this proposition is Eric Stein, “Lawyers, Judges, and the Making of a Transnational Constitution,” p. 25. Out of ten landmark cases, Stein found only two in which the Court had diverged from the Commission.
150. Pescatore, The Law of Integration, p. 80.
151. See Rasmussen, On Law and Policy in the European Court of Justice, pp. 238-40.
152. The most notable proponents of this approach to American judicial politics were Justice Felix Frankfurter and his intellectual protégé Alexander Bickel. See Alexander Bickel, The Supreme Court and the Idea of Progress (New York: Harper and Row, 1970).
153. Mancini, “The Making of a Constitution for Europe,” p. 605, emphasis original.
154. Treaty on European Union, Articles 126-129 (Luxembourg: Office for Official Publications of the European Communities, 1992).
155. Treaty on European Union, Article 143.
156. For a discussion of the distinctive characteristics of reflectivism, see Keohane, “Two Views of Institutions,” pp. 389-93.
157. See also Friedrich Kratochwil and John Gerard Ruggie, “International Organization: A State of the Art on an Art of the State,” International Organization 40 (Autumn 1986), pp. 753-75
158. Friedrich V. Kratochwil, Rules, Norms, and Decisions (Cambridge: Cambridge University Press, 1989)
159. John Gerard Ruggie, “Continuity and Transformation in the World Polity: Toward a Neorealist Synthesis,” World Politics 35 (1983), pp. 261-85
160. Alexander Wendt, “Anarchy is What States Make of It,” International Organization 46 (1992), pp. 391-426.
161. See Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford: Oxford University Press, 1992)
162. Alec Stone, “Judging Socialism: Constitutional Politics in France and Germany,” Comparative Political Studies, forthcoming.
163. Shapiro, “Comparative Law and Comparative Politics,” pp. 540-42.
164. It should be noted here that Volcansek has integrated similar arguments into a more comprehensive political theory about the impact of ECJ judgments on national courts, arguing for the importance of “legitimacy and efficacy” as one of four factors determining the nature of that impact. See Volcansek, Judicial Politics in Europe, pp. 267-70.
165. Weiler, “The Transformation of Europe,” p. 2428.