Fifteen Eighty Four

Throughout world history, people have marshaled a wide variety of tools to forge new political orders. Some relied on the power of the gun, summoning soldiers and mercenaries to coerce compliance.¹ Others resorted to the power of bureaucracy, wielding civil servants to regulate and reshape society.² Yet increasingly, policymakers are turning to the power of law, mobilizing judges and lawyers to shape public policy and resolve political struggles.³ Across many countries, memories of men on horseback who built states through war are being displaced by jurists in robes who mold polities through law.

The European Union (EU) is widely regarded as the “model of expansive judicial lawmaking” propelling this “new world order.”⁴ Lacking a supranational army and a capacious bureaucracy, the EU depends on a transnational network of courts to implement policy and ensure that states comply with their legal obligations.⁵ But why would judges – particularly national judges – play ball? What drove them to participate in the construction of Europe?

My new book – The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe – flips the conventional answer to this puzzle on its head. For decades, scholars presumed that courts advanced European integration to empower themselves.⁶ In this view, activist national judges refused to apply state laws violating European rules and referred cases of state noncompliance to the EU’s supreme court – the European Court of Justice (ECJ). They claimed judicial review powers denied by their national legal orders and drove the ECJ’s rise as “the most effective supranational judicial body in the history of the world.” ⁷

The Ghostwriters reveals how this judge-centric narrative conceals as much as it reveals. Through novel interview, archival, and geospatial evidence, I show that national judges broadly resisted empowering themselves with European law, for they were constrained by onerous workloads, lackluster legal training, and the careerist pressures of their domestic judicial hierarchies. The catalysts of change proved instead to be a lesser-known group of “Euro-lawyers”⁸ facing fewer bureaucratic shackles. Cloaked in the sheepskin of rights-conscious litigants and activist courts, these WWII survivors pioneered a remarkable repertoire of strategic litigation. They sought clients willing to break national laws conflicting with European law, lobbied judges about the duty and benefits of upholding EU rules, and propelled them to submit cases to the ECJ by ghostwriting their referrals. Beneath the radar, Europe has been significantly built by lawyers who encouraged deliberate law-breaking and mobilized courts against their own governments.

The “judicial construction of Europe”⁹ thus exemplifies how legal craftsmanship can reshape politics and policy even when judges prove less inclined to change than we might think. Most national courts stubbornly resisted Euro-lawyers’ efforts, but some judges were tickled by Euro-lawyers’ novel legal arguments – particularly if lawyers subsidized the work of crafting compelling referrals to the European Court. By ghostwriting hundreds of these national court referrals to the ECJ, Euro-lawyers supplied the EU’s top court with a stream of cases to federalize the European Treaties and expand the horizons of litigation. Although national governments often lamented these developments, there was little they could do to stop them short of politically capturing entire national judiciaries.

Today, the EU’s identity as a polity built through law is so taken for granted that few observers puzzle over how this outcome came to be and whether judges are the protagonists of this tale. But there is more to this ‘whodunnit’ story than meets the eye. The Ghostwriters pieces this puzzle together, exhuming the untold ways that lawyers shaped the development of the world’s sole supranational polity.

¹ Tilly, Charles. 1993. Coercion, Capital, and European States, A.D. 990–1992. New York, NY: Wiley-Blackwell.
²Scott, James C. 1998. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven, CT: Yale University Press.
³ Shapiro, Martin, and Alec Stone Sweet. 2002. On Law, Politics, and Judicialization. New York, NY: Oxford University Press; Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York, NY: Cambridge University Press; Hirschl, Ran. 2007. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press; Alter, Karen. 2014. The New Terrain of International Law: Courts, Politics, Rights. Princeton, NJ: Princeton University Press.
⁴ Alter, Karen, and Laurence Helfer. 2017. Transplanting International Courts. New York, NY: Oxford University Press, at 4; Slaughter, Anne-Marie. 2004. A New World Order. Princeton, NJ: Princeton University Press, at 33–34; 134–135.
⁵ Kelemen, R. Daniel, and Tommaso Pavone. 2018. “The Political Geography of Legal Integration: Visualizing Institutional Change in the European Union.” World Politics 70(3): 358–397, at 358–360; Kelemen, R. Daniel, and Kathleen McNamara. 2021. “State-building and the European Union: Markets, War, and Europe’s Uneven Political Development.” Comparative Political Studies (ahead of print): 1–29.
⁶ Weiler, Joseph. 1991. “The Transformation of Europe.” The Yale Law Journal 100: 2403–2483, at 2426; Burley, Anne-Marie, and Walter Mattli. 1993. “Europe Before the Court.” International Organization 47(1): 41-76; Alter, Karen. 2001. Establishing the Supremacy of European Law. New York, NY: Oxford University Press. For a critical review, see: Pavone, Tommaso. 2018. “Revisiting Judicial Empowerment in the European Union.” Journal of Law & Courts 6(2): 303–331.
⁷ Stone Sweet, Alec. 2004. The Judicial Construction of Europe. New York, NY: Oxford University Press, at 1.
⁸ I borrow this term from: Dezelay, Yves, and Bryant Garth. 1995. “Merchants of Law as Moral Entrepreneurs.” Law & Society Review 29(1): 27–64, at 54; Vauchez, Antoine. 2015. Brokering Europe: Euro-Lawyers and the Making of a Transnational Polity. New York, NY: Cambridge University Press.
⁹ Stone Sweet, The Judicial Construction of Europe.