Kennedy: Nigger: The Strange Career of a Troublesome Word
| DOI | http://doi.org/10.1111/j.1468-2230.2004.516_4.x |
| Date | 01 September 2004 |
| Author | Richard Mullender |
| Published date | 01 September 2004 |
REVIEWS
S|¤ofra O’Leary,Employment Law at the European Court of Justice: Judicial
Structures, Policies and Processes,Oxford: Hart Publishing, 2002, ix þ316pp,
hb d30.00.
O’Leary introduces this text by stating that concentrating on the work of the
Court of Justice may no longerbe i nvogue. In fact, and perhaps somewhat belat-
edly,the inter-institutional dynamic of European employmentlaw is the focus of
an ever-increasing number of academic articles and texts. Thus an argument has
to be made as to why a specialist study ofa particular institutionwill enhance our
understanding of the evolution of employment law and policy not only at the
European level, but also at the national and trans-national level. Here the author
is well-placed, as a former academic and now as a legal secretary at the Court of
Justice, to provide an insightful analysisof the pivotal role the Courthas played in
the evolution of employment law.
Overone third of the bookis devoted toa discussion of the Court,in particular
its composition and working methods, with particular attention focused upon
Article 234 EC. The ¢rst three chapters bring together academic, judicial and
practitioner writing on the Court, without £inching from discussing and com-
mentingupon some of the criticismslevelled at oneof the high pro¢le,and some-
times controversial, institutions of post-1945 integration in Europe.This is a crisp,
detailed and organised account of the major writings on the Court, embracing
the inevitable comparisons with federal Supreme and Constitutional Courts
while emphasising the unique integrationistrole of the Court inthe political con-
text of Europe.
There are some omissions from the literature reviewed in these early chapters.
One weakness is the lack of a critical discussion of the role (or, lack of a role) of
race and gender in the Court. Similarly the feminist critiques of judicial decision-
making at the European level are missing from what is otherwise a comprehen-
sive review of the legal and political science literature on the institutional
dynamicsof the Court.These chapters also lackan analysis of the nationaljudicial
role in European integration and the motivations of the institutions and actors
who use the Europeancourts for particularpurposes.These omissions have reper-
cussions forthe later chapters whichfocus upon case studiesof employment issues
before the Court.
O’Leary o¡ers a professional detachment from the subject matter. Insights
from herown experiences andobservationsof the Court could have di¡erentiated
this text fromothers. She could have attempted, for example, to explain in con-
text the criticisms levelled at the Court and its procedures or to show how parti-
cular external factors may ^ or may not ^ impact upon the internal workings of
the institution.
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Havingset out the functions and functioning of the Court and examinedjudi-
cial perspectives on the £exibility debate, the book proceeds with three case stu-
dies: on indirect discrimination; the reconciliation of pregnancy, maternity and
family responsibilities with equality and the demands of the workplace; and,
¢nally, acquired rights. The case studies are self-contained and are written in a
crisp style, drawing upon an extensive academic literature. Each would merit
inclusion in a reading list on the relevantsubstantive law topic.
There is no explanation as towhy the case studies have beenchosen, how they
¢t with the preceding chapters and what conclusions can be drawn from them
with respect to a particular theoretical model of the role of the Court. This
approach makesthe book appear fragmentary. Ideally the case studiesshould have
been linked to the earlier chapters. They could have been used to expand, high-
light, or ind eed contradict, the general poi nts made in the precedi ng chapters. For
example, the problems with linguistic analysis in the case law on acquired rights
in Chapter6 could be linked to the broader di⁄culties of linguistic interpretation.
This case study would also have bene¢ted from analysis of comparative law tech-
niques and the judicial attitude towards handling the transposition of a newlegal
regime to a di¡erent legal approach at the national level. Judicial attitudes towards
social stereotyping would have been usefullyanalysed in the discrimination con-
text of Chapters 4 and 5. In these chapters,where the UK andGermany dominate
the preliminary references, especially in the indirect discrimination ¢eld, there is
no explanation as to why cases are sent from particular jurisdictions. Yet this is a
fundamental issue in relation to Article 234 EC. Particularly in the employment
context, studies have shown how a disproportionate number of references are se nt
to the Courtfrom the central, northernEU Member States. These refere ncestypi-
cally ask somewhat limited questions in relation to the subject matter, but the
ensuing case law is of fundamental importance to the development not only of
employment law but also in the context of citizenship and human rights dis-
course. Other critical work has shown the irrelevance of these issues to the lives
of women working in the southern Member States.
The case studies fail to develop a theory ^ or indeed increase our understanding
of the political, institutional, and historical context ^ of howArticle 234 EC creates
an integrationist dialogue.We are given few insights as to why the Article 234 EC
process is triggered, by whom and what are the outcomes of a particularlitigation
strategy. Similarly we see little discussion of the relationship between, or impact
upon, national, trans-national and European lawas a result of litigation strategies.
The text fails to capture the fundamental changes which have permeated the
role and nature of Eu ropean employment law. Al thought hese changes are attrib-
uted to political and economic factors, many of the ideaswere nurturedi nthe case
law of the Court.But, paradoxically, many of the new underpinnings of employ-
ment law ^ redressing the balance between economic and social values, the con-
stitutionalisation of new procedures (and new institutional actors) together with
a greater emphasis upon citize nship and fundamental rights ^ may be harder to
enforce at the juridical level given the moves towards the use of soft lawand fra-
mework Directives in the employment ¢eld.
A concluding chapter could have teased out these issues thus providing an
understandingof the normative role of the Court as a vehicle for integration and
Reviews
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