European Law Open (2022), 1, 209–215
doi:10.1017/elo.2022.10
BOOKS AND CLASSICS
The EU and law in context: the context
Carol Harlow
Emerita Professor of Law, London School of Economics and Political Science, London, UK
Corresponding author. E-mail: c.harlow@lse.ac.uk
(Received 9 February 2022; accepted 9 February 2022)
- Abstract
- It is widely acknowledged that the contextual study of European Community law, later European Union law, has contributed to a richer understanding of EC/EU law. This review proposes a contextual reconstruction and analysis of EC/EU law in context, or what is the same, it considers the institutions, milieus and debates which fostered the analysis and assessment of EC and EU law as ‘an intricate web of politics, economics and law’, at the same time that facilitated the development of critical self-consciousness about the underlying assumptions that scholars (including contextual scholars) bring to their study of law. This is done by engaging with the work of Francis Snyder, and in particular, with his groundbreaking collection “New Directions in European Community law”.
Keywords: legal scholarship; law in context; legal methods; sociology of knowledge
1. A new approach
In 1987, 15 years after the United Kingdom (UK) signed up to the European Community (EC) – realistically perhaps to the Common Market[1] – Francis Snyder published an article asking for ‘new directions’ in the teaching and study of EC law. His complaint was the dryness of EC law studies. EC law had ‘often been regarded (and taught) simply as a highly technical set of rules, a dense doctrinal thicket into which only the ignorant or the foolish would “jump in and scratch out their eyes”, still less try to understand in terms of social theories of law.’[2] It had in this respect been to some extent ‘incorporated into the textbook tradition of English law’,[3] a development Snyder attributed to the fact that EC law had been taught in the UK by ‘a handful of specialists’, most of whom had begun their careers as legal secretaries at the European Court of Justice (ECJ). The outcome had been a markedly uncritical stance and a narrow focus in teaching and legal literature on the Court and its case law.[4]
Snyder was writing about the UK, where he was teaching at Warwick Law School, founded in 1967 with a law in context agenda and an evolving record for its contextual approach to legal education. Legal positivism and a narrow focus on doctrine and the jurisprudence of the superior courts are not confined to the UK, however, and very similar criticism could have been levelled at EC legal studies more widely. In the formative period of EC law, the infant institutions were left much to their own devices without the guidance of a constitution in fleshing out their roles. EC lawyers were largely receptive of integrationist doctrine and concerned at the same time to shelter the ECJ from accusations of playing politics in embedding integrationism in the case law. Indeed,
- ↑ For contemporary British attitudes to accession, see D Nicol, EC Membership and the Judicialization of British Politics (Oxford University Press 2001) chs 3 and 4.
- ↑ F Snyder, ‘New Directions in European Community Law’ 14 (1987) Journal of Law and Society 167–82.
- ↑ Ibid. 167, citing Karl Llewellyn’s The Bramble Bush (1953).
- ↑ Ibid. 168.
© The Author(s), 2022. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
