The book edited by Professors Tamara Perišin and Siniša Rodin successfully fills a lacuna. It assesses how, to what extent and ultimately why the ‘fluid, allegedly leftist, stream of American legal thought' (6) known as Critical Legal Studies (CLS) represents a fascinating and useful alternative tool for the understanding and reconceptualization of EU law, with a particular focus on the reasoning of the Court of Justice of the EU (CJEU). Transferring into the EU narrative the CLS perspective—and the anti-formalist critique implied in it—means that the contributors to the volume have attempted to answer the question—which was already posed in Duncan Kennedy's monograph A Critique of Adjudication [fin de siècle]—on whether the EU transforms the law or (merely) reconstitutes it.
The book is organized as follows. A first introductory chapter, written by the editors, identifies the legal context and puts forward what are the main concepts and questions deriving from the transposition of the CLS thinking and methodology into the European legal discourse. The following four parts are devoted to: the relationship between judicial thinking and policy choices; the legitimacy of the CJEU in the development of the process of European integration and its resistance vis-à-vis the implementation of political ideologies through its case law; the potential of the CLS ‘doctrine’ for the appreciation of three sectors of EU substantive law: the internal market, the international trade and the European arrest warrant; and the function performed by academics in the way lawyers conceive the law and think about their role in the adjudication process.
In a second chapter Pierre Schlag develops an approach to legal interpretation that respects its local, contextual and text-specific character. To this end, by reflecting on textualism and purposivism as the two principal and widespread modes of legal interpretation, he focuses on the various problems arising within each mode of interpretation, ie, favouring an intra-modal type of interpretation.
The third chapter, authored by Duncan Kennedy, moves across the lines of his book Freedom and Constraints in Adjudication, with the aim of reconstructing ‘the experience of a judge who has a specific place in a typology of judges and is operating in a specific political and legal cultural context’ (29–30). In this respect, Professor Kennedy's analysis ranges between three aspects of contemporary legal thought, all of which have been already partially investigated in the author's previous works: proportionality; institutional competence arguments, amongst which judges’ deference to the legislature; and the hermeneutic of suspicion.
The fourth chapter by Koen Lenaerts challenges the idea that European judges, unlike their American colleagues, did not rely on non-deductive arguments. In this regard, Professor Lenaerts, starting from the assumption that Advocates General (AG) often engage in methods of interpretation that are purpose-driven, posits that, where the CJEU follows AG's opinions, it endorses the non-deductive arguments contained in those opinions. Furthermore, the author succeeds in demonstrating that the EU legal order must find in itself the means and solutions to fill gaps and ultimately affirm its autonomy from national legal orders as well as from international law. Comparative law method, as stressed by Professor Lenaerts, represents one of those means and solutions enabling the European judges to resolve ambiguities ‘without embarking on judicial legislation’ (63).
In the fifth chapter Tamara Ćapeta argues that ideology characterizes the reasoning of the CJEU, notwithstanding the opposite position expressed officially by its judges. When EU judges, who are aware of the influence of ideology over their way of reasoning, deny it, according to Professor Ćapeta, they act in bad faith. Now, this bad faith, as explained in the chapter, is not negative per se as hiding the presence of ideology is seen by the European Courts as the right tool to preserve the European legal and political system based on the fiction of a democratic society grounded in the principle of the separation of powers. On the other hand, however, admitting ideology might be beneficial because society would be allowed to discuss more extensively the complexities and results of adjudication.
Mitchel Lasser, in the sixth chapter of the book, focuses on the impact of judicial appointments’ methods and reforms on the independence and functioning of the CJEU as well as of the European Court of Human Rights, from the standpoint of the interests of State actors in the whole process. The author identifies the similarities and above all the divergences between the two judicial systems and, by doing so, illustrates to what extent the appointments reforms undertaken within the EU and the Council of Europe could be understood as judicial independence mechanisms.
The seventh chapter by Tamara Perišin seeks to adopt the critical theory paradigm to demonstrate that the decision-making of the CJEU in the external sphere (ie, free movement of goods and persons) has been ‘quite conservative and has mostly reconstituted the existing (national or EU) regulatory policies’ (174). The main argument is that insiders (ie, EU actors) were attributed substantial rights which have no corresponding rights for outsiders (ie, non-EU actors). In this context, Professor Perišin claims that, in order to strengthen and advance the process of European integration, the CJEU should give ‘better’ (153) treatment of non-EU actors.
The eighth chapter, written by Siniša Rodin, is centred on the useful effect of the Framework Decision on the European Arrest Warrant (EAW). The question posed by the author is whether the interpretive stance of the CJEU on the EAW seeks to reconstitute national criminal law at the European level, or it is a sign and symptom of a ‘genuinely European and integrative’ (177) function performed by the Court within the Area of Freedom, Security and Justice. The answer seems to be that the CJEU has given itself an autonomous role precisely by responding to national concerns via the reconstitution of national legal concepts with the EU. At the heart of this approach lies the Court's belief in ‘the perpetuation of European ontology’ (199), rather than of the inherent teleology of EU law.
Pieter-Augustijn Van Malleghem's ninth chapter deals with the formalism/anti-formalism dichotomy within the European legal space. It does so by providing a complementary analysis to the studies undertaken by Mitchel Lasser in his Judicial Deliberations. According to this author, the EU legal discourse carried out by both the CJEU and Advocates General can be considered as anti-formalist and their open-ended and non-deductive legal arguments are unable to yield interpretive closure. Rather, Pieter-Augustijn Van Malleghem argues that European legal culture could be deemed as anti-formalist because there exists clear ‘distantiation’ (220) between legal actors and the arguments advanced by them.
The last chapter by Daniela Caruso and Fernanda Nicola investigates one particular CLS dimension, known as the ‘external critique’, that is to say the distributive consequences stemming from the CJEU's decisions and their implications for justice across gender, race, nationality and socio-economic background. In this regard, the authors support a greater involvement of progressive scholars in putting distributive issues and goals at the core of their legal critique.
In conclusion, the volume serves as an indispensable tool to be used by both academics and practising lawyers to deepen their knowledge of EU law, namely the internal and autonomous functioning of the CJEU's reasoning. In order for an integrated and supranational system of rights to be strengthened, it is vital that the Court that established that system, rather than simply acting as a ‘bouche qui prononce les paroles de la loi’ (Montesquieu), performs a policy making function, embodying, on the juridical level, a certain idea of law, economics and politics, that is to say ‘une certaine idée d'Europe’ (Pescatore). An idea that the innovative CLS conception of legal thinking and judicial adjudication, centred on the natural interplay between judicial function, ideology and politics in the court, may successfully foster and develop.
