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This article introduces the special issue on the new history of European law. Its intention is to provide our audience with the intellectual context that the contributions seek to address and some of the underlying conclusions from the fields of political science and legal scholarship that the archive material synthesised here will recast. Each of the individual contributions will be described and located in the new field of scholarship, and the intentions and current limitations of our findings will be delineated.
The inter-war period is a forgotten moment in the debate about a European institutional order amongst legal scholars. Although the European Communities established in the 1950s did not derive directly from the institutional schemes of the 1920s, the earlier period played an important role in the building of a specifically European legal doctrine. The failure of the universalist League of Nations led a certain number of international jurists, particularly French ones, to support regional solutions as an alternative. A European legal framework was thus seen as a possible way of adapting international law to meet the goals of peace and stability.
This article analyses how the seeds for the development of European law from the 1960s onwards were sown in the foundational treaties. It argues that despite the fact that both European treaties embodied a conscious choice by the majority of the governments not to establish the European Communities on a constitutional basis, a small number of politicians and jurists managed nonetheless to insert the potential for the constitutional practice. Following a chronological account of each set of negotiations, the article untangles the complex ideas and decisions, which crafted both the legal shape of the treaties and the jurisdiction of the new European Court of Justice.
This study analyses the 1953 and 1956 Dutch constitutional reforms ‘towards’ Europe, revealing the complexity and mutuality between national constitutional reform and the development of European integration in the 1950s. It demonstrates that long-standing Dutch traditions of adherence to international law played a formative role in constitutional reform, which itself ultimately facilitated the transformation of European law. Thus, it challenges the understanding of this development of European law as merely a constitutional or administrative process, arguing for the inclusion of national constitutional legal traditions in the writing of the history of European law.
The origins of the constitutional practice of European law clearly lie in the two famous rulings of the European Court of Justice (ECJ) Van Gend en Loos (1963) and Costa v. E.N.E.L (1964). Despite this, very little is known for sure about the genesis of the ECJ's interpretation or the dynamics within the Court at the time. Most accounts focus on the role of the ECJ in revolutionising European law. Using recently disclosed archival material, this article traces the role of the Legal Service of the European executive in the development of the constitutional practice. It demonstrates that the Legal Service played a crucial role both in terms of devising the legal philosophy behind the two rulings and in the establishing of a professional and academic field of European law, which would underpin the constitutional practice. At the same time it shows that the ECJ – although it adopted the legal philosophy recommended by the Legal Service – did this in a cautious and restricted manner to minimise national resistance.
Social scientific explanations of the role of European law associations in the making of a new European legal order argue that they were critical in empowering the European Court of Justice and defining the results of European legal integration. However, these approaches fail to highlight the complex context in which these associations evolved. By exploring the history of the French Association des juristes européens from 1951 to 1970 on the basis of comprehensive archival material, this paper provides a more contextualised understanding of what appears as a struggle with limited impact on the French reception of European law.
Established explanations of the development of the European legal system focus on the decisive power of the Court of Justice in determining the system's practice and parameters. Even accounts highlighting the various interlocutors involved with the Court are ultimately drawn to Luxembourg as the fulcrum of decision. However, these approaches neglect the equally constitutive role played by national courts, particularly when resisting the European Court of Justice (ECJ). By analysing the important consequences of the German Constitutional Court's Solange decision of 1974, this paper argues that we must complicate our retelling of the European Union's (EU) legal history by rethinking the importance of national-level agency.
A historical retelling of European competition policy is crucial to understanding the discrepancy between the rules in the treaties and their implementation. The historian must navigate treacherous waters between contrasting treaty stipulations in the ECSC and in the EEC Treaties, initial attempts at rigorous implementation but with limited effect on the ground, and a complicated relationship between the supranational institutions. Only in the 1980s did the Commission enjoy the benefits of the ECJ's supportive case law. These benefits came due to a fortunate conjuncture of political, economical and administrative factors.
The articles in this special issue test a range of historiographical assumptions – for example, about periodisation (most importantly when legal integration ‘began’) as well as about the definition of the purported object of study (the seemingly ‘constitutional’ character of the process of European legal integration) – which have been central to the interpretative baseline established by legal scholars and political scientists over the last several decades. Building on a similar critique of that baseline, this article argues that integration can profitably be understood, in legal-historical terms, as a denationalised expression of diffuse and fragmented (that is, ‘administrative’) governance. The basic elements of that governance emerged in Western Europe over the course of the inter-war and post-war decades, and these elements have continued to shape EU legal history up to the present.
The study of everyday life has had a particular resonance for historians of state socialism for a variety of reasons. First, the study of everyday life promises to get beyond the notorious doublespeak and rosy scenarios of official discourse. Second, the history of everyday life makes use of the great boon of recent history: the availability of interview subjects. Historians of earlier periods can only look longingly at the surfeit of interview subjects available to those who work on more recent decades. While oral history can have its own problems, the works under consideration in this review largely use them to good effect to get at the lacunae and misrepresentations in official discourse. Third, the study of everyday life offers an important vantage point for understanding the vast majority of citizens who were not resistors and yet challenged the state in important ways. As Sandrine Kott has noted, ‘individual preference . . . constituted a third brake on the “perfect” working of the system’. Finally, the ‘interesting’ events in East European socialism are ones that are people powered, most famously the 1989 revolutions that spanned the region. The history of everyday life offers the promise of explaining the paradox of how supposedly stable regimes which experienced comparatively little open resistance in forty years of existence collapsed in a matter of weeks or even days.
In the past decade there has been a real explosion of studies on collective memory in eastern Europe. Two large themes have attracted the attention of scholars: the ongoing re-evaluations of the past after the end of communism and the memory of state socialism. These two topics were evidently related to each other in two ways: first, the communist period became an object of collective memory and many events linked to communist rule were re-evaluated once taboos and politically imposed interpretations fell by the wayside. Second, many political and public figures identified communist rule in eastern Europe as the reason why the nation's ‘genuine’ memory had been distorted. Now, they claimed, history could and had to be rewritten in order to bring previously suppressed memories to the foreground.