REVIEW
| Date | 01 May 1994 |
| Published date | 01 May 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01956.x |
REVIEWS
Joxerrumon
Bengoetxeu,
The Legal Reasoning
of
the
European
Court
of
Justice,
Oxford: Clarendon Press,
1993,
xvi
+
294
pp, hb
E35.00.
This ambitious book explores the adoption of a jurisprudential approach as a
method of understanding the nature of European Community law. It examines the
European Court’s interpretative technique and its justification of its legal
decisions. In the Preface, the author explains that
his
interest in the European
Court was initially fired by its ‘courageous jurisprudence’ and he declares that the
Court is ‘taking the European Community project seriously.’ His perception of the
Court as ‘Dworkinian’ reappears throughout the study as the author shows
convincingly that the Luxembourg Court develops EC law guided by the principle
that it should have a coherent system,
an
integrity, transcending the skeletal
framework of the Treaty of Rome. The work is the fruit of a PhD pursued by a
Basque in Scotland, between
1986
and
1989,
principally under the supervision of
Professor Neil MacCormick.
The author is justified in
his
claim that
this
area of study is relatively unexplored
by both EC lawyers and legal theorists. Although all EC law books worth their salt
include, either as a separate chapter or, more commonly and probably more
successfully, by way of integrated comment in the text, discussion of theoretical
perspectives on processes of legal interpretation in the European Court, there is
relatively little written in English which seeks unashamedly to adopt a primarily
theoretical perspective. For your reviewer, the author overstates
his
case at p
2
where he claims that ‘the theoretical presuppositions underlying most doctrinal
expository works on EC law are all too often weak and unsophisticated, if not
confused,’ but he is persuasive on the value of further contribution to the
theoretical analysis of the work
of
the European Court. Equally, legal theorists
have not devoted much attention to the phenomenon of EC law. The author
considers that his development of theories of legal reasoning in the context of EC
law is a new enterprise, because theoretical work on legal reasoning in the last two
decades has tended to focus on State courts. This is certainly an interesting theme
in so far as it may expose legal positivism (or at least
-
the author is cautious
-
some
legal positivists) to the charge of fascination with the overwhelming presence
of the State in an international economic environment which has drastically
curtailed the role of the ‘sovereign’ State as lawmaker. Market integration in the
EC undermines the power of the Member States to pursue classic State functions;
its law, a law of the market, but not yet fully the law of a State, subverts the status
of national law. The author is initially principally concerned to expound his
version of positivism, and to persuade that EC law fits such a model despite being
‘non-State.’ He opts for a model of Institutional Legal Positivism. In elaborating
his
view, much of the first half of the book offers a sure-footed explanation of the
structure
and
sources of EC law with especial reference to the role of the Court and
its choice of legal reasoning model. He seems to make a strong case both
for
drawing EC law into the theoretical field of legal reasoning and for the need to
underpin EC law scholarship with a theoretical framework.
The preceding paragraph of
this
review might be summarised by a penetrating
reader as ‘well, we must all look at a bit of theory now and then, mustn’t we,’ the
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The
Modem Law Review
Limited
1994
(MLR
57:3,
May). Published by Blackwell Publishers,
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