Political, not (just) legal judgement: studying EU institutional balance
This article presents two related arguments. First, the limits of doctrinal analysis cut deeper than many EU lawyers realise. Most would probably accept that legal doctrine does not determine every legal dispute, but lawyers studying EU institutional balance often still assume that it can be deduced...
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| Format: | Article |
| Language: | English |
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Cambridge University Press
2024-06-01
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| Series: | European Law Open |
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| Online Access: | https://www.cambridge.org/core/product/identifier/S2752613524000262/type/journal_article |
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| author | Martijn van den Brink |
| author_facet | Martijn van den Brink |
| author_sort | Martijn van den Brink |
| collection | DOAJ |
| description | This article presents two related arguments. First, the limits of doctrinal analysis cut deeper than many EU lawyers realise. Most would probably accept that legal doctrine does not determine every legal dispute, but lawyers studying EU institutional balance often still assume that it can be deduced from the positive law what is good institutional practice. This paper argues instead that the allocation of EU institutional authority cannot be determined by the exercise of legal judgement, but instead requires the exercise of political judgement on the relative merits of different institutions. Second, this means that political and normative discourses and disciplines cannot be assumed to fall outside the domain of legal scholarship. What we need instead is a distinctive kind of legal scholarship that interweaves doctrinal analysis with normative political theory, broadly conceived. I will argue that political theory, in addition to evaluative value, has adjudicative value, provided that our theories are sensitive to the EU’s social and political setting and the constraints this setting imposes on what is realistically feasible. |
| format | Article |
| id | doaj-art-77f87e8d26ec40848da60ddfb7c8bec6 |
| institution | Kabale University |
| issn | 2752-6135 |
| language | English |
| publishDate | 2024-06-01 |
| publisher | Cambridge University Press |
| record_format | Article |
| series | European Law Open |
| spelling | doaj-art-77f87e8d26ec40848da60ddfb7c8bec62024-12-09T14:21:14ZengCambridge University PressEuropean Law Open2752-61352024-06-01338940110.1017/elo.2024.26Political, not (just) legal judgement: studying EU institutional balanceMartijn van den Brink0https://orcid.org/0000-0002-2225-2204Hertie School of Governance, Berlin, Germany University of Leiden, School of Law, Leiden, The NetherlandsThis article presents two related arguments. First, the limits of doctrinal analysis cut deeper than many EU lawyers realise. Most would probably accept that legal doctrine does not determine every legal dispute, but lawyers studying EU institutional balance often still assume that it can be deduced from the positive law what is good institutional practice. This paper argues instead that the allocation of EU institutional authority cannot be determined by the exercise of legal judgement, but instead requires the exercise of political judgement on the relative merits of different institutions. Second, this means that political and normative discourses and disciplines cannot be assumed to fall outside the domain of legal scholarship. What we need instead is a distinctive kind of legal scholarship that interweaves doctrinal analysis with normative political theory, broadly conceived. I will argue that political theory, in addition to evaluative value, has adjudicative value, provided that our theories are sensitive to the EU’s social and political setting and the constraints this setting imposes on what is realistically feasible.https://www.cambridge.org/core/product/identifier/S2752613524000262/type/journal_articleEU lawmethodologydoctrinal methodinstitutional balancepolitical judgementpolitical theory |
| spellingShingle | Martijn van den Brink Political, not (just) legal judgement: studying EU institutional balance European Law Open EU law methodology doctrinal method institutional balance political judgement political theory |
| title | Political, not (just) legal judgement: studying EU institutional balance |
| title_full | Political, not (just) legal judgement: studying EU institutional balance |
| title_fullStr | Political, not (just) legal judgement: studying EU institutional balance |
| title_full_unstemmed | Political, not (just) legal judgement: studying EU institutional balance |
| title_short | Political, not (just) legal judgement: studying EU institutional balance |
| title_sort | political not just legal judgement studying eu institutional balance |
| topic | EU law methodology doctrinal method institutional balance political judgement political theory |
| url | https://www.cambridge.org/core/product/identifier/S2752613524000262/type/journal_article |
| work_keys_str_mv | AT martijnvandenbrink politicalnotjustlegaljudgementstudyingeuinstitutionalbalance |