A. Introduction
That European Union (EU) law is “law” is usually taken for granted. Opinions are divided on whether the form of EU law can best be characterized as international, trans- or post-national, or federal. These diverging views result in different normative accounts of how the EU and national legal orders should interact. But they all presuppose the existence of EU law as “law,” in other words, its legality—a term which in legal philosophy broadly refers to the quality of being law. Legality in this broader sense must not be confused with the narrow understanding of legality as lawfulness. When the criteria for legality are established, we answer the “what is law” question and formulate a concept of law. EU law theory, however, has mainly focused on debating the legitimacy of legal integration, whilst the more foundational “what is law” question remains largely undiscussed in EU legal studies. Some authors have pointed in this direction over the years,Footnote 1 but none of them has properly addressed the “what is law” question in EU law. The present Article problematizes this omission by showing that the future of EU law is shaped by our concept and theory of law.
This analysis makes an original contribution to EU legal studies, first, by restating the importance of the “what is law” question in EU law and, second, by demonstrating what it would mean to theorize EU law from a more realist(ic) perspective. It should be noted that my use of the term “realist(ic)” aligns with neither political nor moral realism, nor does it endorse the traditional forms of legal realism. Instead, this Article develops a realist theory of EU law that entwines the ideational and material dimensions of law’s social reality to reveal the emergence of a non-singular form of legality in EU law. In this context, “ideational” refers to collectively accepted ideas, norms, values, and concepts, whereas “material” points to the factual and physical conditions of social reality and its power-relations. In formulating and defending a distinctively realist concept of EU law, this Article will also cast critical light on the assumptions that currently shape the EU’s “politics of legality.”Footnote 2
Boundedness is normally viewed as a necessary ontological and epistemological precondition for the existence of law. The criteria for legality ultimately determine where the boundary between law and non-law lies. But law’s boundaries are “shifting,” rather than static.Footnote 3 This dynamism explains why debates about the nature and concept of law are so ardent in legal philosophy. The “what is law” question has traditionally been a target of general analytical jurisprudence. For analytical positivists, legality stems from the formal pedigree of legal sources, as well as from their origin in particular social facts.Footnote 4 For non-positivists, the criteria for legality may entail claims about the content or merits of law.Footnote 5 But a theory of law can also focus on explaining “how people conceive of and utilize law.”Footnote 6 A far-reaching example is Brian Tamanaha’s argument about the “conventional recognition of what is ‘law,’” which entails that law is anything that a group of people decides to label as law.Footnote 7 This premise allows Tamanaha to posit that “[i]nternational law is law, not because it satisfies abstract criteria of legality based on form, function or some other basis (which no theorist has successfully formulated), but because it is conventionally recognized as law by jurists, political leaders and the public.”Footnote 8 Thus, the question of what makes law “law” is more complex than we might first think, and I argue that it is particularly convoluted in the case of EU law.
Because modern law is “a source-based enterprise,”Footnote 9 a simple answer to the “what is law” question might be that we only need to find out what the valid sources of EU law are. But a more difficult question is what determines the validity of these sources—an inquiry that is particularly pertinent in the case of extra-Treaty primary EU law. Moreover, it is arguable that legality cannot be reduced to formal legal validity if the aim is to comprehend the social reality of EU law. A careful analysis of American and Scandinavian legal realism provides a starting point for this attempt to rethink the concept of EU law from a more realist(ic) perspective. But it will be seen that the realist theories of adjudication reinforce the “what is law” question in EU law instead of answering it. Over the years, several authors have identified legal realism as a potentially useful theoretical and critical approach to explaining the jurisprudence of the Court of Justice of the EU (CJEU). But the realist analyses of the CJEU’s case law have little to say about the concept of EU law. The discussion on legal realism has also remained relatively superficial in EU legal studies. A more detailed study of the realist indeterminacy thesis in this Article will shift the critical focus from legal realism as a theory of adjudication to what a realist concept of EU law would look like.
It is important to notice that a concept of law can implicate a more or a less complex relationship between law and its social, political, and economic context. For example, a reconstruction of the Marxist analysis might view the legal form as fully determined by the capitalist structure.Footnote 10 But the problem with simple historical materialism is that it prevents us from “analysing in detail the ideological battles that surround the law and … the conditions under which the forms and contents of legal doctrine develop in all their complexity and variety.”Footnote 11 A more sophisticated analysis of the law’s ideological, or ideational, dimension cannot ignore the law’s internal point of view, that is, how legal officials and experts explain and justify claims for legal authority and legality. Moreover, it would arguably also need to account for the role that legal norms play in citizens’ “practical reasoning.”Footnote 12 Therefore, the central premise steering this Article is that a truly realist concept of EU law must account for law’s social reality, which is simultaneously both ideational and material.Footnote 13 My analysis thus converges with critical social theory in holding that neither the material nor the ideational dimension of social reality is fully determinative of the other.Footnote 14 From this perspective, the law-power relationship appears more complex than under the conditions of simple materialism.
This inquiry into the realist concept of EU law is structured as follows: After this introduction, the Article will first briefly reiterate how legal realism has been popularized in EU law scholarship as a critical lens through which the CJEU’s jurisprudence and methodological choices can be analyzed. The central issue for this Article is whether legal realism provides a sufficient answer to the “what is law” question in EU law. The following section will demonstrate that the realist critiques of the CJEU’s jurisprudence currently leave the “what is law” question unanswered. This analysis posits that legal realism as a theory of adjudication must be complemented with a realist theory of law in EU legal studies. Against this backdrop, the Article will outline what a realist theory of EU law would look like and what the realist account of law’s factual and ideational dual nature can add to the concept of EU law. The last main section will conclude this discussion by illustrating what concrete implications these insights about a realist concept of law would have for the study and practice of EU law, including the CJEU’s autonomy thesis and rule of law jurisprudence, and how the failure to account for the emergence of non-singular legality thwarts the progress of EU and transnational legal theory. It is hoped that these findings will pave the way for a more sustainable “politics of legality” in EU law.
B. The Realist Critique(s) of the CJEU’s Jurisprudence: What and Why?
The CJEU’s judicial methodology and reasoning have been objects of intense scrutiny and debate over the years. Some defend the CJEU’s reliance on teleological reasoning as “a function of the particular nature of the EU legal order.”Footnote 15 But the teleological method of interpretation can also be seen as a sign of problematic judicial activism. A related set of criticism focuses on the CJEU’s perceived unwillingness to engage in a proper dialogue with its national interlocutors in the preliminary reference procedure.Footnote 16 In this section, a closer look at these debates on the CJEU’s methodology shows how questions about the nature and concept of law have direct pratical relevance for EU law and how legal realism has already been harnessed to explain and critique the Court’s methodological choices.
The much-debated Weiss/PSPP saga between the CJEU and the German Federal Constitutional Court (FCC) provides a concrete example of how and why the CJEU’s methodology fosters criticism. While the CJEU concluded that the European Central Bank’s Governing Council had not exceeded its Treaty mandate when the crisis-related asset purchases were extended to cover the public sector purchase programme (PSPP)Footnote 17 , the FCC held that the CJEU had omitted a full exercise of balancing between different interests in its reasoning.Footnote 18 The FCC’s take on the proportionality analysis has raised multiple objections from the perspective of EU law.Footnote 19 But its criticism highlighted the methodological nature of the dispute under consideration.Footnote 20 Commentators from different ends of the integrationist spectrum seemed to agree that the style of the CJEU’s reasoning may at least partly explain the outcome of the Weiss/PSPP saga.Footnote 21
The CJEU’s reasoning is presumably shaped by its institutional self-understanding, as well as by the fact that only a consensual majority opinion is published.Footnote 22 For instance, Christina Eckes argues that the CJEU “faces particular difficulties to theorize completely.”Footnote 23 This is so because members of the Court may be able to agree on the factual outcome of a particular case even when they disagree on its theoretical basis. The critical literature also highlights that the Court’s methodology is hardly ever purely deductive.Footnote 24 For example, Mark Dawson suggests that the Court’s reasoning can be called “ideological” when it relies on “assumptions about society and economy that are implicit in its reasoning yet are in fact highly contested.”Footnote 25 Moreover, Dawson also postulates that the “indeterminacy” about the sources of EU law makes the Court’s recourse to “extra-legal steadying factors” easier.Footnote 26 These observations about the CJEU’s reasoning resonate with a realist theory of adjudication, and legal realism has been identified as a useful tool for explaining the CJEU’s jurisprudence and methodology.
In this context, a basic distinction should be made between American and Scandinavian legal realism. In brief, the former focused on how judges in fact decide cases, whereas the latter aimed to remove all metaphysical and ideological content from legal science.Footnote 27 EU law scholars seem to usually have American legal realism in mind when they depict the CJEU’s jurisprudence as realist. A central thesis of American legal realism, as formulated by Karl Llewellyn, was that “there is less possibility of accurate prediction of what courts will do than the traditional rules would lead us to suppose.”Footnote 28 Not all legal realists were extreme rule skeptics, as they are sometimes caricatured.Footnote 29 Yet, American legal realism is often described in terms of its opposition to what is called “legal formalism.” Different authors assign different meanings to legal formalism.Footnote 30 But a basic account of legal formalism holds that doctrinal tools and methods produce “determinate and internally valid right answers” and that the process of deductive legal reasoning can be distinguished from the subject matter of the case.Footnote 31 A rigid distinction between legal formalism and realism was arguably never sustainable.Footnote 32 But it still seems to inform the realist critiques of the CJEU’s jurisprudence, as this section will next demonstrate.
The CJEU’s alleged realism is described both as a positive and as a negative trait in the relevant literature. For example, Damjan Kukovec has provided a defense of what he calls a “realist trend” in the CJEU’s case law.Footnote 33 By this term, Kukovec refers to “[t]he Court of Justice’s increased requirement for deeper assessments of the conduct’s actual effects on the market ….”Footnote 34 Kukovec envisages how “increased judicial engagement with social and economic reality enhance[s] the dynamics of the adversarial procedure aiming at a more targeted legal analysis that avoids over and under inclusion.”Footnote 35 He also argues that the CJEU’s jurisprudence advances “the basic realist insight – that all relevant considerations have to be taken into account to have a well-functioning legal system.”Footnote 36 Kukovec concludes that the Court’s realist tendencies protect the right to effective judicial protection.Footnote 37 But his normative defense of the CJEU’s perceived realism overlooks the more critical potential of legal realism in EU legal studies.
A diagonally opposite view of the CJEU’s alleged realism is offered by Alexander Somek, who contrasts the traditional methodological analysis with what he calls “pragmatism” in legal reasoning and decision-making. The term “pragmatism” is here adopted from Ronald Dworkin, who seemingly refers to legal realism as “pragmatism.”Footnote 38 Somek argues that “a strong case can be made that a more radical form of pragmatism explains much of the practice of the ECJ.”Footnote 39 By this, he means that “the substance of the Treaty” prevails over “its form.”Footnote 40 For Somek, the cultivation of pragmatism equals to “a momentous transformation of normativity.”Footnote 41 Against this backdrop, Somek observes that “we seem to have lost confidence that a methodological critique is capable of achieving something” and that “methodological analysis may have had its day, too.”Footnote 42 Somek recognizes the link between the CJEU’s methodology and the concept of law.Footnote 43 But instead of taking this analysis further, he focuses on criticizing the “negation” of legality that arguably stems from the pragmatist turn in judicial methodology.Footnote 44
These two examples show how the realist analysis of the CJEU’s jurisprudence has been popularized in EU legal studies although opinions profoundly differ on what normative conclusions should be drawn from the CJEU’s alleged realism. Some defend the CJEU’s pragmatism or realism as a way of making its case law more relevant in the face of complex social and economic challenges, whereas others ponder whether this type of “social engineering”Footnote 45 happens at the cost of legality. It may first seem that the realist critique of the CJEU’s jurisprudence also provides a conclusive answer to the “what is law” question in EU law. For example, Somek postulates that: “In a most profound sense we are all legal realists now. We are inclined to profess faith in the functionalist gospel according to which law is a function of judicial behaviour.”Footnote 46 But it will be seen in the next section that the reference to law as a function of judicial behavior oversimplifies the realist indeterminacy thesis, thus underminging its critical potential in EU law. More importantly, it also obscures the analytical distinction between legal realism as a theory of adjudication and a realist theory of law.
C. Rethinking Legal Realism in EU Law: From a Theory of Adjudication to a Theory of Law
This section will illustrate why legal realism as a theory of adjudication must be complemented with a realist concept of law in EU legal studies. Legal realism presents a methodological approach that radically differs from general analytical jurisprudence. American legal realists argued that their observations about what courts do were best understood as a “descriptive sociology of law.”Footnote 47 It has been noted that the early American legal realists mainly relied on “anecdotal evidence and phenomenological, first-person accounts of the judicial process.”Footnote 48 But the so-called New Legal Realism (NLR) movement has subsequently tried to remedy these flaws in the realist approach.Footnote 49 The empirical orientation of modern legal realism can provide a useful lens for studying the CJEU’s jurisprudence, as is demonstrated by the growing interest in empirical legal studies in EU law. But it is important to notice that empiricism has limits in realist legal theory. These limits are clarified, for example, by Brian Leiter as follows:
“[W]hile they [i.e. legal realists] may believe the only fruitful account of adjudication is descriptive and empirical, not normative and conceptual, they themselves need a concept of law that is not itself empirical or naturalized.”Footnote 50
Similarly, the realist critiques of the CJEU’s jurisprudence must presume a concept of law that allows us to distinguish legal from non-legal reasons. To clarify this point, this section will have a closer look at the realist indeterminacy thesis.
American legal realists called into question the “orthodox” view that rule-descriptions and other doctrinal means constitute “the heavily operative factor” in judicial decision-making.Footnote 51 But most legal realists did not argue that primary rules always suffer from indeterminacy.Footnote 52 For them, the main source of indeterminacy instead lay in courts’ choice over different “canons of interpretation,” which allow the same statute or precedent to produce “differing rules.”Footnote 53 A further source of indeterminacy can be located in the variety of doctrinal materials that could potentially be invoked in any individual case.Footnote 54 In short, this means that “rule oriented-realism” is possible insofar as the “stability of rules” is explained by lawyers’ “convergence,” rather than by “the determinacy of the doctrine.”Footnote 55 As has been seen in the previous section, the CJEU’s methods of reasoning generate indeterminacy that can be expressed in realist terms. But it often goes unnoticed that this argument from legal realism simultaneously reinforces the “what is law” question in EU law.
As Leiter notes, a meaningful claim about the indeterminacy of legal reasoning is contingent on the distinction between “legal” and “non-legal” reasons.Footnote 56 However, legal realism as a theory of adjudication fails to articulate such a theory of law.Footnote 57 Leiter’s argument does not stop here, for he also argues that the realist indeterminacy thesis presumes “an essentially positivistic account of the criteria of legality, one in which proper pedigree is the hallmark of a genuinely legal norm.”Footnote 58 This challenges the common view that legal realism and legal positivism contradict each other conceptually.Footnote 59 Leiter does not suggest that all legal realists identified themselves as legal positivists.Footnote 60 But he seems to claim that the explanatory value of legal realism is directly linked to whether “legal positivism is true.”Footnote 61 From the perspective of the present Article, the crucial point is that the realist indeterminacy thesis presumes a concept of law that can distinguish legal from non-legal reasons.
As this section has shown, legal realism as a theory of adjudication must be complemented with a realist theory of law in EU legal studies. I cannot fully develop this point here, but the mainstream theories of positivist analytical jurisprudence (e.g. Kelsen, Hart, Raz) are of little help in theorizing EU law, first, because of their either explicit or implicit dependence on the law-state paradigm and, second, because the positivist “social fact thesis” fails to properly engage with law’s social facticity and materiality.Footnote 62 However, my argument for the realist concept of EU law is positivist in the broader sense that it views law as a human-made “positive” or “posited” social artifact. Therefore, this Article will next explain why a better understanding of law’s sociality is foundational to a realist concept of EU law and how the realist insight of law’s factual and ideational dual nature elucidates the social reality of EU law.
D. Law’s Sociality as a Basis for the Realist Concept of EU Law
The realist critiques of the CJEU’s jurisprudence and methodology do not provide us with a realist theory of EU law. Instead, the realist critiques of adjudication presume a theory or a concept of law that is often left unpronounced. This raises the question of what a more realist, or “realistic,”Footnote 63 concept of EU law would look like. Legal realism is sometimes labelled as a predicative theory of law, a term which implies that “an accurate prediction of what a court will do” denotes legality.Footnote 64 But the critical potential of the realist indeterminacy thesis fades away if legality is reduced to a statement of what courts are prone to do in a specific case. And if the realist critique becomes just another name for the fact that the CJEU’s judicial methodology does not always respect the textual limits of the EU Treaties, it does not bring much added value to critical studies of EU law. A different, more promising, understanding of a realist(ic) theory of EU law focuses on how legal theory could accommodate the complex social reality of law.
It is widely accepted that law is a social phenomenon. But legal theorists tend to disagree on what it takes to explain the nature of law within this parameter. The search for general—essential—characteristics of law is typical of both positivist and non-positivist analytical jurisprudence, and the method of conceptual analysis is therefore prominent in general jurisprudence. It has been noted that a conceptual analysis of law “need not be arid or vulgar.”Footnote 65 But the conceptual method is nevertheless vulnerable to the criticism that “[t]he sense of context – save our own, and that typically only assumed – is lost.”Footnote 66 This is problematic because the legal theorist is always bound by a particular time and place.Footnote 67 Moreover, law itself can be understood as “a specific, historical and contextual form of normativity,” which makes it “a contingent fact.”Footnote 68 What can be said about legality in the context of monist state law does not necessarily hold true in the context of non-state or transnational law, and so on.
Therefore, many legal theorists have rejected the idea of a general concept of law. In particular, the search for a general concept of law is called into question by scholars who emphasize the nature of law as a social institution.Footnote 69 But it is important to notice that “social legal theory”Footnote 70 cannot distance itself from the “what is law” question although it distances itself from the search for a general concept of law. This is so because “all enquiry into law necessarily starts from some conception of law, however thin, indeterminate and constantly falsifiable.”Footnote 71 This is also the case with empirical legal studies, which often overlook the “what is law” question.Footnote 72 For instance, Roger Cotterrell observes that “if … legal sociology takes ‘law’ as its unifying field of research, some sense of the scope of this field is needed and rigorous concepts of law help to provide this.”Footnote 73 Moreover, it is arguable that even descriptive legal sociology must take into account the internal, normative, self-understanding of law when the field of its study is defined.Footnote 74
A seemingly easy way to avoid essentialism is to accept a plurality of concepts of law.Footnote 75 But this, too, would require “a prior analytical position” to decide which concepts can be included in this plurality.Footnote 76 Therefore, the difficult question for social legal theory is whether law should be viewed as an analytical concept at all. If the answer is negative, the term “law” arguably collapses into an “ethnocentric folk category.”Footnote 77 This is exactly how Brian Tamanaha’s conventionalist theory of law responds to the problems of essentialist theory building. As was already briefly noted in the introduction, Tamanaha promotes the view that “[l]aw is whatever people identify and treat through their social practices as ‘law.’”Footnote 78 Critics claim that Tamanaha’s approach “turns the what-is-law question into a descriptive inquiry” and “gives no analytical purchase on the idea of law.”Footnote 79 But conventionalism does not make an internal or immanent critique of law impossible. Tamanaha explicitly states that “the ideal of law in a given community may indeed have an essential nature that can be analytically identified.”Footnote 80 For the purposes of the present Article, a more powerful argument is that Tamanaha fails to properly explicate “how the identity of the social practice [that constitutes law] can be established.”Footnote 81
Tamanaha views “collective recognition within a given group” as key to how social institutions are constructed.Footnote 82 Moreover, he posits that “any group within the social arena” can “identify a phenomenon as law through their social practices for it to qualify as such.”Footnote 83 It has been noted that Tamanaha does not explain “which people’s views” are determinative if disagreements about what counts as law arise in a particular context.Footnote 84 Tamanaha does admit that “law is not just a reflection of social and moral norms but also a site of continuous struggle between individual and social interests.”Footnote 85 But the conflictual dimension of social constructivism remains undeveloped in Tamanaha’s work. In particular, his conventionalism leaves the complex relationship between law and power unexplored. It is this last point that in my opinion reduces the critical potential of Tamanaha’s social legal theory, rather than his conventionalism as such. And this gap becomes more consequential when conventional recognition is meant to explain the existence of trans- or postnational law, rather than that of state law.
To sum up, the pressing question for realist social legal theory is how the identity of law as a normative social practice is established. Some argue that a meaningful answer to the “what is law” question must determine “the conditions under which a whole community of people can be bound by the same normative order.”Footnote 86 But community-centered answers to the “what is law” question tend to view law “as always directed towards reasons, which are in turn connected to some conception of the good.”Footnote 87 By over-simplifying the law-power relationship, they present an incomplete picture of law’s social reality. This raises the question of whether, and if so, how a realist theory of EU law can avoid these pitfalls. As a way forward, the next section will elaborate how the realist understanding of law’s factual and ideational dual nature can help us to seize the complex social reality of EU law, as well as the way in which it differs from the social reality of state law.
E. The Realist Account of EU Law’s Factual and Ideational Dual Nature
Developing a realist theory of EU law entails spelling out what kind of social phenomenon EU law is. Legal theory has traditionally demarcated the social facticity of law from its more ideological or ideational role in practical reasoning. The realist argument of law’s dual nature is of interest to this Article because it brings these two dimensions of law’s social reality together. Legal realists emphasize that the analysis of law cannot be reduced to “the appeal to existing doctrine.”Footnote 88 Instead, they want to know “which valid norms are actually enforced” and “how and against whom they are enforced.”Footnote 89 But the realist interest in law’s social facticity must not be confused with the Critical Legal Studies (CLS) argument that law simply collapses into politics. On the contrary, and as will be seen in this section, the realist understanding of law’s dual nature allows a more complex understanding of the law-power relationship, depicting the constant tension between law’s power and reason, or its facticity and normativity, as the main indicator of legality.
I. Scandinavian Legal Realism on the Law’s Dual Nature
This Article has already explained what the limits of American legal realism are in addressing the “what is law” question in EU law. But a different perspective on legal realism is provided by Scandinavian legal realists who tried to eliminate all metaphysical and idealist elements from legal science. Alf Ross, a prominent Scandinavian legal realist, posited that “[t]he subject of legal philosophy is not law … but legal science.”Footnote 90 From this starting point, Ross set out to develop a realist theory about “what the concept ‘scientifically valid (Danish, Swedish etc.) law’ actually means.”Footnote 91 For Ross’s realist position, the central problem concerning the scientific validity of law is “the relation between normative idea content and social reality.”Footnote 92 Ross resolved this problem by endorsing a dualist view that “[l]aw is at the same time something factual within the realm of reality, and something valid within the realm of ideas.”Footnote 93 This then led him to argue that the notion of scientifically valid law simultaneously comprises “an order which is actually efficacious” and “an order which is valid by virtue of a priori principles.”Footnote 94
It is this dualism that allows the legal scientist to predict “the course which the law is going to take when it is operating in a real world context.”Footnote 95 For Ross, “the administration of justice through the courts” is where “the efficaciousness defining the scientific validity of law” takes place.Footnote 96 Ross concluded on this basis that scientifically valid law can be understood as “the normative ideology which is actually operative, or must be thought operative, in the mind of the judge, because it is felt by him to be socially binding and is, therefore, complied with efficaciously.”Footnote 97 The realist position was accordingly defined as the one that “looks upon the law as a social phenomenon, determined by the application of law by the courts.”Footnote 98 Ross posited in this context that “[a]ll realistic theories agree in interpreting the scientific validity of legal norms as expressing a certain social efficacy.”Footnote 99 Ross’s notion of judicial ideology presumes that “the judge, in his inner thoughts, is governed and motivated by a normative ideology with a certain kind of content.”Footnote 100 However, it can be argued that Ross placed too much weight on the explanatory power of normative ideology. As Ross himself noted, not all legal realists agree on this presumption about the effectiveness of shared judicial ideology.Footnote 101
Ruth Nielsen has already suggested that EU law scholarship can benefit from Ross’s insight of “law as being of a double—combined ideological and factual—character.”Footnote 102 The argument about law’s dual nature implies that law becomes “a tangible reality” when it is enforced.Footnote 103 Nielsen applies this insight to EU law by making the following statement:
Seen from the perspective of Scandinavian Legal Realism, nothing is law just because the ECJ says so. A judgment from the ECJ is primarily a statement of the legal ideology of the ECJ and lacks the factual dimension of law unless a national legal/state system chooses to add a factual dimension to the ideological statements of the ECJ.Footnote 104
It arguably follows from this that the validity of EU law presumes “a more comprehensive multi-level legal system, where EU law and the national law of its Member States are seen as mutually embedded.”Footnote 105 But Nielsen does not explain what these findings mean for the EU’s politics of legality—a question that will be addressed in more detail in the final section of this Article. Moreover, viewing the judicial ideology as a sufficient explanation for law’s social efficacy provides an incomplete picture of law’s ideational and material dimensions and, thus, of the law-power relationship in EU law. This can be illustrated by considering how the argument of the dual nature of law is professed outside Scandinavian legal realism.
II. The Tension Between Law’s Political and Rational Dimensions: From Neumann to Habermas
The idea of law’s dual nature is not unique to Scandinavian legal realists. Several legal and social theorists have developed the argument of law’s dual or hybrid nature outside the context of Scandinavian legal realism. It can be argued that “[l]aw has always embodied both ratio and voluntas” although both dimensions may have changed over time.Footnote 106 In contemporary legal theory, a common point of reference for this discussion is Franz Neumann’s analysis of law’s functions in modern society.Footnote 107 Neumann identified “two different concepts of law; a political and a rational concept.”Footnote 108 The political concept entails that “every measure of the sovereign power, regardless of its material content, constitutes law,” meaning that “[l]aw is voluntas and nothing else.”Footnote 109 The rational concept views law as “a norm that is intelligible and contains an ethical postulate which is frequently that of equality.”Footnote 110 For instance, Roger Cotterrell, with reference to Neumann, depicts law as “a combination of reason and power.”Footnote 111 Similarly, Kaarlo Tuori views both law’s ratio and voluntas as central to understanding “the general sources of law.”Footnote 112 But different scholars give different meanings to these two dimensions of legality, as well as for their relationship and interaction.
Cotterrell equals voluntas with the “power element in law”Footnote 113 although he notes that the legitimacy of law’s voluntas requires “some stable relationship with the networks of community that are regulated by law.”Footnote 114 Cotterrell also detects a close link between the production of law’s ratio and “law’s complex, ambiguous, and varied relationships with power.”Footnote 115 From this perspective, the law-power relationship can be seen as “a problem concerning the relation between physical force and ideological bond qua elements of motivation within the power relations of the law itself.”Footnote 116 Tuori, for his part, speaks of “the voluntas of positive law,” thus emphasizing that law’s “voluntarism” is not a synonym for “coerciveness.”Footnote 117 Postnational law arguably provides a concrete example of how law’s voluntarism can be separated from coerciveness.Footnote 118 Tuori observes in this context that “coercion … ultimately guarantees the realisation of law, both ratio and voluntas.”Footnote 119 But he does not specify what this concession means for the separation of voluntarism and coerciveness and, thus, for the legality of trans- or postnational law. This latter question about law’s social facticity is central to the realist theory of EU law. Moreover, law’s ideational dimension is arguably also implicated by power relations in ways that undermine any categorical distinction between law’s reason and power.
A more nuanced account of law’s dual nature and the law-power nexus is developed, for example, by Jürgen Habermas.Footnote 120 For Habermas, the internal tension between facticity and validity, which is “built into law itself,” takes place between law’s positivity and its claim for legitimacy.Footnote 121 In this context, the “facticity of law” refers to the facticity of law enforcement and law-making, that is, to the “positivity of law.”Footnote 122 Habermas’s account of “the dual character of legal validity” thus conceptually includes the facticity of law enforcement or “factual compliance.”Footnote 123 But Habermas also discerns a different type of facticity that is external to law.Footnote 124 This “social facticity” refers to “social constraints that actually govern legal decisions.”Footnote 125 This then means that “[t]he normative self-understanding of law can be negated by social facts that intervene in the legal system from without.”Footnote 126 Both Habermas’s understanding of the tension between facticity and validity as the defining characteristic of legality and his more intricate account of law’s facticity are potentially important for the realist theory of EU law.
Accepting the realist idea of law’s dual nature does not resolve or remove the tension between law’s facticity and normativity. On the contrary, it can be argued that a realist theory of law only qualifies as a theory of law insofar as it affirms this tension, as opposed to reducing legality to a mere facticity or materiality. However, unlike Habermas, a realist theory of law cannot categorically distinguish the internal facticity of law from social facticity. As explained above, Habermas is primarily interested in “the internal tension between facticity and validity manifest in the ambivalent mode of legal validity.”Footnote 127 He is able to demarcate the internal from the external tension between facticity and validity in this way because the internal, conceptual, relationship between law and political power in the constitutional state (Rechtsstaat) is separated from “social power that penetrates law from outside.”Footnote 128 This separation is not tenable under a realist theory of law. The internal tension between law’s “facticity”—in other words its enforcement—and “validity”—in other words its normative self-understanding—is important when the next section of this Article revisits the EU’s current politics of legality. But the material dimension of legality cannot be reduced to the issue of effective enforcement. As the emerging critical theories of EU law indicate,Footnote 129 the realist concept of EU law would ultimately also need to account for more subtle ways in which social facticity and power are infiltrated into the law of the European Union, including its ratio and ideational dimension.
III. An Interim Conclusion
The realist account of law’s dual nature portrays the social reality of EU law as simultaneously both factual/material and ideational. From this perspective, the main contribution of legal realism to EU law is to extend the analysis of legality from formal legal validity to the complex law-power nexus without denying the importance of law’s normative-ideational self-understanding. But opinions diverge on how successfully legal realists have dealt with the complexity of the law-power relationship. For instance, Franz von Benda-Beckmann warns against “the danger of not taking normative phenomena seriously as ‘real’ or ‘empirical’ and so limiting the understanding of the social significance of such phenomena.”Footnote 130 Similarly, Habermas speaks of “false realism” that “underestimates the empirical impact of the normative presuppositions of existing legal practices.”Footnote 131 Others, however, posit that the realist account of legality “begins with the idea that law’s power invites reason.”Footnote 132 While these questions about the relationship between law’s ratio and voluntas, or its normativity and facticity, are not unique to EU law, it will be seen in the next section that the realist focus on law’s facticity reveals a non-singular—or “singular plural”Footnote 133 —form of legality that distinguishes EU law from monist state law.
F. From Theory to Practice: What Difference Would the Realist Concept of EU Law Make?
Legal realism as a theory of adjudication must be complemented with a realist theory of law in EU legal studies. The previous sections laid down a set of parameters for a more realist theory of EU law. This section will illustrate what difference the realist concept of law would make in EU legal studies. First, this analysis shows that EU law cannot be viewed as autonomous if we take seriously law’s facticity and materiality. Second, the realist account of legality critically revisits the mainstream pluralist approaches, including the different variants of legal and constitutional pluralism and inter-legality, in theorizing EU law. As they focus on the co-existence of plural legalities, the pluralist theories overlook the more foundational question about the nature of legality in EU law. As such, they also fail to account for the non-singular form of legality in EU law. Finally, it will be seen that a better grasp of the EU’s partaking in the politics of legality is integral to a more realist(ic) theory of EU law. This discussion highlights the amount of work that remains to be done to mainstream the realist position in EU legal studies. It will also introduce the realist account of legality as key to the EU’s ongoing authority crisis.
I. A Realist Critique of the CJEU’s Autonomy Thesis
The validity of primary EU law, including the unwritten general principles of EU law, is often taken as given by EU law scholars. As Ross notes, “legal science proper” normally ignores questions about the nature of law because the presumption of validity constitutes “an integral element” of doctrinal statements.Footnote 134 But a mere source thesis of legal validity ultimately fails to explain what factors make a particular source of EU law valid law.Footnote 135 The “what is law” question is also obscured by the way in which the validity of EU law is separated from the questions concerning its interpretation and application. As is well known, this distinction guides the division of labor between the EU and national courts.Footnote 136 It may also help to reconcile the primacy of EU law with the fact that the EU cannot be seen as “a self-validating order.”Footnote 137 The categorical distinction between validity and application has long been under pressure from those national constitutional courts and tribunals that claim the right to exercise an ultra vires review of EU law under certain circumstances.Footnote 138 But it is also called into question by the realist theory of EU law, as discussed in this Article.
It is a truism that national courts and authorities play a central role in the application and enforcement of EU law.Footnote 139 A vast body of academic literature has explored the role of national courts as “EU courts” over the years.Footnote 140 But less attention has been dedicated to what this cooperation between the EU and national courts means for the nature of EU law. For instance, Tuori postulates that “[t]he cure to transnational law’s incompleteness lies in its parasitic character.”Footnote 141 But his discussion on this incompleteness focuses on normative “distilling techniques” that EU law uses to manage its “parasitic character,” rather than on the legality of EU law.Footnote 142 From the realist perspective, the incompleteness of EU law does not just relate to “the legitimating function,”Footnote 143 but extends to the nature of EU law as “law,” that is, its legality in the broad sense. If law’s social reality is simultaneously both factual and ideational, the legality of EU law is not reducible to normative statements about what counts as valid EU law according to the CJEU. Therefore, the legality of EU law looks different depending on how much attention is paid to the facticity and materiality of EU law.
Neither the principle of State liability nor the Article 258 TFEU infringement proceedings—both of which have been used very sparingly against national courts—change the fact that national courts and authorities exercise significant control over the facticity of EU law. National challenges to the absolute primacy of EU law are often problematized because rights that individuals enjoy as subjects of EU law must be upheld equally in all Member States. But this argument for the effet utile of EU law ignores the more foundational link between effectiveness and legality. After all, effectiveness is ultimately “decisive for legality.”Footnote 144 Against this backdrop, it is difficult to account for the factual dimension of EU law without concluding that the legality of EU law is non-singular in ways that differ from state law. Unlike in the case of monist state law, the facticity of EU law is never reducible to a single factual ground, such as a state’s monopoly over the use of force within its territory. This conclusion does not make the existence of EU-level legal authority impossible. On the contrary, the argument of “relative legal authority” can accompany a “notion of degrees of legality.”Footnote 145 But any such authority claim under the conditions of non-singular legality would contravene the CJEU’s autonomy thesis as a central building-block of the EU’s current politics of legality.
As is well known, the CJEU claims that “[the] autonomy of EU law with respect both to the law of the Member States and to international law is justified by the essential characteristics of the European Union and its law.”Footnote 146 These essential characteristics of EU law relate “in particular to the constitutional structure of the European Union and the very nature of that law.”Footnote 147 The Court has also frequently emphasized in this context that:
EU law is characterised by the fact that it stems from an independent source of law, namely the Treaties, by its primacy over the laws of the Member States, and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves.Footnote 148
The autonomy of EU law is sometimes explained by “the lex specialis character of EU law,” which the Member States have accepted as signatories of the EU Treaties.Footnote 149 But the Treaties are silent about the autonomy thesis and the other “essential characteristics” of EU law are premised on the autonomy of EU law, instead of explaining why it exists.
This circularity suggests that the autonomy thesis ultimately hinges on the CJEU’s reference to the “very nature” of EU law. It is generally accepted that the autonomy thesis protects the unity and the proper functioning of the EU legal order.Footnote 150 Along with the functional rationale and the CJEU’s need of self-perseverance, many commentators detect a more axiological/value-laden dimension in the CJEU’s autonomy thesis.Footnote 151 Autonomy can even be viewed as “existential” to the EU in the sense that it has become “fundamental to the existence of the [Union].”Footnote 152 While all of these rationales may explain why the CJEU invokes the autonomy thesis, none of them clarifies what it is in the “very nature” of EU law that makes EU law autonomous vis-à-vis both the Member States and international law. This lack of explanation gives the impression that the nature of EU law is something pre-given. In reality, however, the autonomy thesis is a product of a very particular politics of legality. That is, it is preceded by a choice between different concepts of law even though this choice now remains implicit in the CJEU’s reasoning.
The CJEU’s autonomy thesis is inseparable from the concept of law that underlies it. Therefore, the realist theory of EU law questions the CJEU’s autonomy-based authority claim from inside, that is, from within the concept of EU law. Some scholars argue with reference to Joseph Raz’s conditions for the existence of a legal system that “all legal systems are autonomous in their own jurisdiction.”Footnote 153 Yet, Raz’s institutional positivism is contingent on the law-state paradigm in ways that ultimately make it unsuitable for theorizing EU law.Footnote 154 Others have proposed that although “EU law appears as a mere component of the applicable legality of the various Member States,” it can simultaneously be viewed as “forming an autonomous legal order, a world of law unto itself.”Footnote 155 But the realist theory of EU law cannot dichotomize law’s social reality in this way. The idea of EU law’s autonomous nature can only be maintained if the factual/material dimension of legality is omitted from discussion, and this omission is not possible for realist legal theory. A more qualified—relative—authority claim for EU law could perhaps be justified by the CJEU’s better capacities to steer or coordinate the formation of a non-singular legality in the EU. This, however, would radically differ from the CJEU’s current autonomy-based authority claim. It would also require a more developed understanding of the emergence of non-singular legality in the EU—a project that has so far escaped the attention of both EU law scholars and legal theorists.
II. A Realist Critique of Legal and Constitutional Pluralism in EU Legal Studies
A realist account of law’s dual nature challenges the CJEU’s autonomy thesis from within the concept of EU law. But it also has implications for EU and transnational legal theory. Legal pluralism presents one of the main alternatives to the monist law-state paradigm in analytical jurisprudence. Constitutional pluralism as a specific reinterpretation of legal pluralism has played a prominent role in EU legal studies for more than thirty years. Both a pluralist critique of the monist law-state paradigm and the socio-legal focus of early legal pluralism are relevant for the realist theory of EU law. However, the realist theory of EU law depicts the legality of EU law internally disunified, or non-singular, in ways that the mainstream pluralist approaches cannot sufficiently account for. As this section demonstrates, legal and constitutional pluralism are too focused on “external pluralism,”Footnote 156 that is, on how different legalities co-exist and interact. Similarly, the emerging theory of inter-legality presupposes the existence of interacting legalities. This means that the existing theories of pluralism and inter-legality are of little avail to theorizing EU law from a realist perspective.
The central claim of legal pluralism is that multiple legal systems can “co-exist” in the same socio-political space.Footnote 157 But no consensus exists on the meaning of legal pluralism beyond this point. From a sociological perspective, the pluralist position equals to a simple statement that “multiple [overlapping] communities assert norms that have impact.”Footnote 158 But it has been noted that “nothing can obviously follow from the strong pluralist premise that each normative order is authenticated on its own terms.”Footnote 159 This is why many authors distinguish pluralism from mere “plurality” or “simple diversity.”Footnote 160 The pluralist challenge also extends to “what counts as law.”Footnote 161 In practice, however, the pluralist position can be reconciled with “widely divergent concepts of law.”Footnote 162 Tamanaha accordingly detects the following problem in legal pluralism: “While they agree on the initial proposition that there is a plurality of law in all social arenas, legal pluralists immediately diverge on what this assertion entails because there is no agreement on the underlying concept of law.”Footnote 163 This same analytical problem underlies constitutional pluralism in EU legal studies.
Legal pluralists can circumvent these conceptual and analytical challenges by adopting a “juristic” approach to the pluralist challenge. The so-called pluralist jurisprudence focuses on studying the “plurality of legal systems” by developing solutions to their coexistence and interaction.Footnote 164 In this vein, it has been argued that the very idea of legal pluralism is to advance “some degree of [normative] accommodation of diversity.”Footnote 165 The so-called “classic legal pluralism” explored the existence of plural legalities in colonial and post-colonial societies, whereas “new legal pluralism” extended the analysis of “plural normative orders” outside that context.Footnote 166 But the term “new legal pluralism” can also refer to the emergence of transnational or global legal pluralism.Footnote 167 The pluralist challenge to the law-state paradigm is attractive to scholars of transnational and global law. Therefore, the focus of the pluralist debate has over time moved from “infrastate” to “suprastate” legalities.Footnote 168 Contrary to the sociological orientation of early legal pluralism, transnational legal pluralism almost unequivocally forms a branch of juristic pluralism.Footnote 169
Interaction between different systems or sites of law is a central theme in juristic pluralism. In practice, however, the operation of juristic pluralism requires shared criteria for “the validity, authority and jurisdiction of particular rules.”Footnote 170 The EU’s relationship with the national legal orders can be viewed an example of “juristically recognised” pluralism.Footnote 171 But such an arrangement is ultimately more monist than pluralist if it is based on a shared understanding of “what is to count as law” and of “the legal relationship between different systems of law.”Footnote 172 At the same time, it is questionable whether the “juristic techniques” and “legal methodology” are capable of addressing the pluralist challenge.Footnote 173 This is so because a pluralist scenario is often prone to controversies that are deeply political.Footnote 174 These issues that are critical for juristic or juridical pluralism also underlie the discussion on transnational legal pluralism. Although there are important differences between legal and constitutional pluralism, the discourse on constitutional pluralism in EU legal studies can be depicted as a reinterpretation of transnational juridical pluralism.Footnote 175
As is well known, the central idea of constitutional pluralism is that the EU and national constitutional traditions can exist alongside one another without a clear resolution to the question of jurisdictional authority. From this starting point, constitutional pluralism proposes a non-hierarchical, “heterarchical,” approach, which leaves jurisdictional boundary disputes unresolved.Footnote 176 Instead of making absolute claims for primacy, the conflicting systems are expected to engage in dialogue and mutual accommodation. Constitutional pluralism presents itself as an alternative to the monist and dualist approaches to how the relationship between the EU and its Member States could be understood. But constitutional pluralists, too, can be criticized for being “closet monists.”Footnote 177 For instance, Cormac Mac Amhlaigh uses the term “monist pluralism” to describe the way in which “a series of norms external to, or shared by, both systems … provide a normative resource for the management of interactions and conflicts.”Footnote 178 Even Neil MacCormick, who coined the term “constitutional pluralism” in EU legal studies, acknowledged that “this is a kind of ‘monism’ in Kelsen’s sense.”Footnote 179
A parallel, more normative, strand of critique holds that constitutional pluralism conflicts with the very idea of constitutional law. In particular, juridical constitutional pluralism is criticized for neglecting “the question of political authority.”Footnote 180 In response to this critique, the focus of constitutional pluralism moved from juridical to political constitutional pluralism.Footnote 181 But political constitutional pluralism can also be criticized for presuming that “an independent source of authority” exists at the EU level.Footnote 182 The common denominator for the juridical and political variants of constitutional pluralism is that they focus on how the EU and national-level authority claims can co-exist. This may be understandable insofar as constitutional pluralism seeks to provide an alternative to both European and national monism. But the solution offered by constitutional pluralists is arguably that of “external pluralism,” which tries to reconcile two sets of monist law.Footnote 183 Therefore, and somewhat paradoxically, theories of constitutional pluralism have little to say about the nature of EU law, which is nevertheless the main problematic if we want to rethink the relationship between the EU and national legal orders.
When MacCormick presented the idea of constitutional pluralism, he also promised to articulate “what becomes of our concepts of law and legal system in the light of that all.”Footnote 184 In practice, however, his focus lay in how EU and national legal systems interact.Footnote 185 According to MacCormick, both state and non-state law can be understood as institutional normative orders, but non-state law lacks the feature of being “physically coercive.”Footnote 186 For MacCormick, this was not a problem because his institutional positivism focused on the “normative power” of law.Footnote 187 That is, his theory of law “stresses the kind of normative system law is, rather than some particular or exclusive set of power relations as fundamental to the nature of law.”Footnote 188 For instance, Michael Wilkinson argues that MacCormick’s concept of law overlooks “the process through which political power is generated and acquires legitimacy” because “[t]he focus on legality displaces the question of legitimacy.”Footnote 189 From the perspective of this Article, the problem is not MacCormick’s focus on legality as such. Instead, the problem lies in his theory of law; namely, the narrow focus on intra-systemic validity leaves much of law’s social reality unexplored.
Contrary to MacCormick’s intention, his work fails to properly unpack what legal integration does for our concept of law. A key tenet of MacCormick’s constitutional pluralism is that accepting the higher “validity-ranking” of EU law does not need to mean that there is only “a single legal system, with as many sub-systems as there are member states.”Footnote 190 But he also maintains that the EU legal system “constitutes in its own context and over the relevant range of topics a source of valid law superior to other sources recognized in each of the member-state systems.”Footnote 191 This position presumes “the existence of EC [now EU] law as an ‘independent legal order.’”Footnote 192 Yet, the more foundational question about the legality of EU law remains unexplored. I have developed this critique in relation to MacCormick’s work because his discussion on constitutional pluralism is explicitly rooted in a theory of law. But these observations reveal a broader problem in constitutional pluralism: neither juridical nor political constitutional pluralism provides a satisfactory answer to the “what is law” question in EU law.
III. A Realist Critique of the Emerging Theory of Inter-legality
Constitutional pluralism is often depicted as a break from the earlier jurisprudential discourse on the concept and nature of law.Footnote 193 But it has been seen in this section that different variants of constitutional pluralism ultimately suffer from the same problem: they overlook the “what is law” question in EU law. This is so because constitutional pluralists tend to follow MacCormick in taking the internal validity of EU law for granted. This section will next consider whether the emerging theory of inter-legality could remedy some of the issues that the pluralist approaches leave unresolved in EU legal studies. The term “inter-legality” is sometimes used interchangeably with legal pluralism.Footnote 194 But inter-legality, when properly understood, is a concept distinct from legal and constitutional pluralism. The appeal of inter-legality lies in its shift away from the co-existence of plural legalities to how these legalities interact. The central question for this article is whether the emerging theory of inter-legality could provide analytical tools for explaining the emergence of non-singular legality in EU law.
Inter-legality has become something of a buzzword in legal theory studying transnational law.Footnote 195 But the concept of inter-legality was initially popularised by Boaventura de Sousa Santos already in the 1980s.Footnote 196 De Sousa Santos’s phenomenological analysis of inter-legality focuses on how legal subjects experience plural legalities.Footnote 197 As such, it is heavily indebted to legal pluralism. A different interpretation of inter-legality has more recently been offered by Jan Klabbers and Gianluigi Palombella, who distinguish their analysis of inter-legality from De Sousa Santos’s phenomenological and sociological approach.Footnote 198 Klabbers and Palombella invoke the concept of inter-legality to explain how “different legal orders may overlap normatively and reach beyond their own limits.”Footnote 199 But they explicitly state that “inter-legality does not, in and of itself, clarify much about what others refer to as transnational law.”Footnote 200 Instead, their analysis of inter-legality focuses on the “empirical puzzle” of how courts utilize rules from other legal systems.Footnote 201 Although the theory of inter-legality could try to account for the non-singular form of legality in EU law, it currently leaves this potential unrealized.
First, the recent reworkings of inter-legality focus on exploring “legal relations” and “interlocking of legal regimes”Footnote 202 instead of the “what is law” question. Palombella posits that “[w]hile legality and validity decouple, inter-legality construes a kind of continuum – it captures the legal compound.”Footnote 203 But neither Palombella nor Klabbers substantiates this statement about decoupling legality from validity. Second, the idea of inter-legality itself has remained under-theorized.Footnote 204 Nico Krisch’s argument of “entangled legalities” can be viewed as an attempt to re-theorize inter-legality.Footnote 205 In brief, Krisch posits that “legalities are entangled when norms from different origins are in practice brought into a relation that is not merely one of systemic separation or integration, and when the interaction between them plays a constitutive role for the legal context it relates to.”Footnote 206 For Krisch, the relationship between EU law and national law provides an example of entangled legalities.Footnote 207 He also suggests that viewing law as entangled in this sense would affect the way in which law is cognized.Footnote 208 But the analysis of entangled legalities does not vindicate the concept of inter-legality for the purposes of this Article.
Krisch’s argument about entangled legalities does not offer a theory of law—let alone a realist theory of non-singular legality. Krisch briefly refers to “the legal forms it [entanglement] generates.”Footnote 209 But he ultimately leaves unanswered the crucial question of how entanglement affects “our understanding of the concept of law.”Footnote 210 The “what is law” question is more directly addressed by Ralf Michaels, whose idea of the “external recognition requirement” as “a general requirement of law” informs Krisch’s work.Footnote 211 Although the idea of external recognition is meant to imply that “there no longer is an independent position from which to determine the nature of law,” Michaels maintains that “there are separate legal orders, each of which determines what counts as law for itself (through a rule of internal recognition) and for other orders (through a rule of external recognition).”Footnote 212 Like Krisch, Michaels indicates that his account of external recognition can explain the relations between EU and domestic legal orders.Footnote 213 But his assumption of pre-existing internally valid legal orders leaves the nature of EU law as “law” unexplored.
In sum, the pluralist approaches are of little use to a realist theory of EU law as long as their focus lies in “external pluralism”. The phenomenological account of inter-legality is virtually indistinguishable from legal pluralism, whereas the recent re-workings of inter-legality circumvent the more foundational questions about the changing nature of legality by framing the theory of inter-legality as empirical and “case-related.”Footnote 214 These approaches presume the existence of internally validated legalities or legal orders. Moreover, none of these approaches properly links the idea of inter-legality to questions that realist legal theory views central to the analysis of legality. Due to their insufficient engagement with law’s social reality, these approaches fail to shift the analytical focus from the co-existence and interaction of plural legalities to how legality itself becomes non-singular—or pluralized—in EU law. This is not to say that the social reality of law remains unnoticed in the theory of inter-legality.Footnote 215 But this Article has already demonstrated that law’s sociality cannot be reduced to the social legitimacy of law without considering the complex ways in which law and power interact in society.
IV. Towards a More Realist “Politics of Legality” in EU Law
A closer look at the facticity of EU law in this section has revealed a non-singular form of legality that distinguishes EU law from monist state law and renders the existing pluralist discourse largely obsolete in theorizing EU law. These negative findings are important because they reveal the intellectual and conceptual vacuum that currently surrounds the concept of law in EU law. But this inquiry into the “what is law” question also serves a different purpose; namely, it shows that statements about the nature of EU law are based on either an implicit or explicit politics of legality. The term “politics of legality,” which I borrow from De Sousa Santos, gives expression to the contingent nature of our concepts of law.Footnote 216 Law’s “what” is always shaped by its “where” and “when.”Footnote 217 The criteria for legality accordingly comprise a political choice between different concepts of law, rather than an abstract conceptual truth about the nature of law.Footnote 218 This, however, does not amount to the statement that nothing distinguishes law from politics.Footnote 219 For this Article, the important point is two-fold: (1) the politics of legality is also in operation in EU law and (2) we must understand how the EU’s politics of legality operates before we can critically re-evaluate it.
A better grasp of the EU’s partaking in the politics of legality is integral to developing a realist theory of EU law. Viewing the “what is law” question from this perspective recognizes law’s “performativity,” that is, its capacity to reproduce and create social relations.Footnote 220 It also acknowledges that law’s boundaries, however defined, are likely to “work differently on different groups.”Footnote 221 The idea of autonomy, which has already been refuted above in this section, is constitutive of the EU’s current politics of legality. The CJEU’s engagement with the rule of law provides another prominent example of the EU’s ongoing politics of legality. The rule of law clause in Article 2 TEU plays an important role in upholding the community of law, or a “common legal order,” as the CJEU understands it.Footnote 222 The judicialization of Article 2 TEU has already been extensively discussed by EU law scholars.Footnote 223 Critics have noted that the CJEU’s engagement with the rule of law may disturb the balance of governmental powers in a democratic “Rechtsstaat.”Footnote 224 Moreover, the very idea of a “rule of law State” has been criticized for implying that “the political entity has no existence outside the law.”Footnote 225 But this debate generally overlooks the fact that a choice between different concepts of law precedes the CJEU’s rule of law jurisprudence.
It is problematic to entrench the rule of law clause without articulating what the “law” in that constellation entails—a question that still lacks a definitive answer in EU law. Therefore, the CJEU’s rule of law rhetorics remains tenuous as long as the “what is law” question is not properly addressed in EU law. However, on a more optimistic note, the CJEU’s value jurisprudence under Article 2 TEUFootnote 226 could perhaps pave the way for a more realist theory of EU law. It has rightly been noted that “the substantiation and procurement of values … requires an appropriate form, which facilitates societal understanding.”Footnote 227 Against this backdrop, it is difficult to see how the Court could maintain any type of value jurisprudence over time without considering, first, how these values may reify social reality, which varies not just from one Member State to another but also within them, and, second, how EU law forms part of that social reality, including its unequal power relations. But neither the Court nor the EU legislature is likely to succeed in accomplishing such a task on its own. Instead, a realist(ic) concept of EU law must be accompanied by a more developed critical theory of EU law. This seems even more urgent now that the ambiguous concept of “European society” has been endorsed by the CJEU and EU law scholars.Footnote 228
While the political economy analyses of EU law can help to map the material foundations of the EU legal order under the conditions of late capitalism,Footnote 229 the realist understanding of law’s dual nature calls for a more holistic social critique of EU law.Footnote 230 Both the classic Marxist critique of political economy and the more recent Law and Political Economy (LPE) scholarship challenge the rigid distinction between economic, political, and cultural fields in society.Footnote 231 In doing so, they suggest that the political economy analysis of law “does not mean focus on the economic to the exclusion of the social.”Footnote 232 In practice, however, EU law scholars need critical social theory to substantiate this broad “social” account of political economy.Footnote 233 And by depicting the material and ideational dimensions of social reality as co-constitutive, critical social theory challenges the view that the capitalist relation alone would suffice to explain the form of legality and the law-power relationship in EU law.
To conclude, any simple reference to the nature of EU law is problematic because it conceals the EU’s politics of legality. In the end, the EU’s politics of legality matters because it has implications for the authority and legitimacy claims that the EU makes. However, contrary to the view that often seems to prevail in critical studies of EU law, the analysis of legality cannot be replaced with the discussion on legitimacy. It is important to understand that the “what is law” question can be answered in more than one way to fathom how this choice affects the legitimacy of EU law. The EU’s legitimacy crisis is often depicted as a crisis of political authority that cannot be resolved by legal means.Footnote 234 Moreover, some argue that the discussion on the legitimacy of EU law “can and should take place as a matter of Union politics, without questioning the nature of EU law.”Footnote 235 But this suggestion implies a problematic view of the nature of EU law as something apolitical. Therefore, the present Article posits that questions about legality and the concept of law deserve more attention in critical studies of EU law. But this inquiry cannot be limited to a formalist account of legal validity and pedigree. Instead, the realist theory of EU law calls for a better understanding of how law’s ideational and material dimensions interact—a question that also brings forth the law-power relationship in all its complexity.
G. Conclusion
This Article set out to explore what a more realist(ic) theory and concept of EU law would look like. Considering the EU’s self-proclaimed status as a community of law, leaving this question unanswered is not an option for EU legal studies. A theory of law is needed to explain what determines the validity of sources of law in EU law. The unanswered “what is law” question also underlies the controversy over the CJEU’s reasoning and methodological choices. In this Article, a closer look at the realist critiques of the CJEU’s jurisprudence demonstrated that legal realism as a theory of adjudication does not provide a sufficient answer to the “what is law” question in EU law. What is needed instead is a realist theory of EU law that is properly informed by law’s social reality, which is simultaneously both ideational and material. From this starting point, this Article demonstrated how the realist theory of EU law discloses the non-singular form of legality in EU law that the mainstream pluralist approaches fail to account for. This analysis highlighted that the concept of EU law is not something pregiven and that the EU is actively engaged in the politics of legality. In doing so, the Article depicted the concept of law as a key independent variable in the EU’s authority crisis. But enacting the realist theory of EU law remains difficult without a more developed social critique of EU law.
Acknowledgements
The author wishes to thank the anonymous reviewer and the participants of the DCLP Seminar “What is ‘Law’ in EU Law?” on January 9, 2024 and the DLS Staff Seminar “Legal Realism in EU Law” on November 13, 2024 where the earlier versions of this Article were presented.
Competing Interests
The author declares none.
Funding Statement
No specific funding has been declared in relation to this Article.
Open access
