THE EUROPEAN COURTS AND NATIONAL COURTS: DOCTRINE AND JURISPRUDENCE by Anne-Marie Slaughter, Alec Stone Sweet, and Joseph H. H. Weiler (Editors). Oxford: Hart Publishing, 1998. 400 pp. Cloth $50.00. ISBN 1-901362-26-4.

Reviewed by Mary L. Volcansek, Department of Political Science, Florida International University. Email: VOLCANM@FIU.EDU.

There has been a number of volumes produced that address the question of how national courts have received and applied European Union (EU) law. Most, like this one, are edited and present interpretations by law professors or other specialists from each country. EUROPEAN COURTS AND NATIONAL COURTS does, though, much more. It moves from the strictly legal model that focuses on doctrine, though doctrinal development is included, to the inclusion of extra-legal factors to explain variations from one national judiciary to the next. From the political science perspective, this is a welcome shift. Yet, what chiefly sets this collection apart is the addition of seven chapters of comparative analysis.

Of course, I would not expect yet another series of essays describing the reception of European law by national courts from these three editors. Anne-Marie Slaughter, a professor of law at Harvard, has been in the forefront of applying international relations theory to the EU legal order. Alec Stone Sweet is a political scientist, now at Oxford, who has crafted some of the most novel theoretical work on the political role or the "judicialization" of politics in European constitutional courts; he also draws heavily on the literature of international relations. Joseph Weiler is perhaps the most well-known analyst of the European Court of Justice (ECJ), whose keen insights have been instrumental in shaping the study of European law. This intellectually gifted trio pulled together a collection of chapters that will influence the study of European law and also speak forcefully to students of courts and politics elsewhere.

The book is divided into two sections: six chapters comprising national reports and seven chapters of comparative analysis. Though there is the inevitable unevenness of application, the six national reports each follow a common outline that requires an explication of doctrine, followed by a treatment of the influence of extra-legal factors. The editors did not leave the extra-legal side to individual inclination, but rather stipulated that each national report consider the affect of "national identity," judicial empowerment, judicial dialogue, national and European context, deployment of individual litigants and national courts, separation of powers, legal culture and judicial composition. These are the factors that are often cited as potential explanations for national court decisions on European law, but that have not been subjected to empirical testing. Though rigorous testing does not occur here, either, at least each is considered systematically in treatments of Belgium, France, Germany, Italy (two), the Netherlands, and the United Kingdom. Moreover, the editors present a "Prologue" that clearly defines their understanding of each of these factors and that guides the authors of the individual national reports. The result is an unusually consistent presentation of each member state's reception of EU law and possible explanations of how that was accomplished. The extra-legal factors are discussed more conjecturally than empirically, but even so a new layer is added to how European law is generally discussed in legal or even political science circles. These six chapters will be welcomed by people like me who are interested in EU law, but who are not always quite on top of it.

The meat of the book lies, in my opinion, in the last half. Karen Alter's essay evaluates the relative usefulness of the major theoretical approaches that have been applied to explain the relationship between the ECJ and national courts. Her yardstick for assessment is the importance and generalizability of factors across member states. She clearly articulates the neo-realism explanation (national interest) and the neo-functionalist and inter-court competition theses (interests of the judges and the courts), and then points out the shortcomings of each. By her own admission, this chapter is largely a synthesis of the literature; it is nonetheless a most useful evaluation.

Walter Mattli and Anne-Marie Slaughter offer a more refined treatment of their earlier path-breaking (and controversial) work proposing a neo-functionalist explanation of European legal integration that appeared in INTERNATIONAL ORGANIZATIONS. The new element that they introduce here is the concept of a "disaggregated state" or "disaggregated sovereignty," and they are much more specific about the power that courts seek to obtain through their treatment of European legal dictates. Their tightly woven argument cannot be easily summarized in the short space of this review, but it does move the neofunctionalist-legal realist debate to a new plane and should influence how legal integration is viewed. Though Mattli and Slaughter do not draw implications for the interactions of other court systems, I see a number of applications for studies of other transnational legal institutions and even for interactions among various hierarchies of courts in systems where, for example, ordinary and administrative courts are separate or a constitutional court exists outside the judicial organization.

Bruno de Witte's chapter examines the concept of sovereignty and its relative importance to the discourse on legal integration, and Alec Stone Sweet's chapter provides a refinement of his concept of "constitutionalization." Both could be usefully read by anyone studying state courts in the U.S., as well as by those interested in European judiciaries. Joseph Weiler and Ulrich Haltern discuss a phenomenon that would appear on the surface to be one of strictly European interest: the question of the KOMPETENZ-KOMPETENZ. This is a debate usually linked to the German Constitutional Court's questioning of the authority of the ECJ to determine if it does or does not have the legal jurisdiction to decide certain issues. It would be more familiar to most Americans as a question of ULTRA VIRES powers and who can decide what are and what are not. Whereas Weiler and Haltern are writing to support the authority of the ECJ and also to propose creation of a special mechanism to avoid future conflicts, the concepts they develop and apply could be usefully read by people interested in the division of powers among courts, whether in Europe or elsewhere.

What is particularly satisfying about this collection is the "Epilogue" written by Weiler, in which he tries to tie all of the disparate pieces together and to suggest what they all mean. Many edited books would benefit from such a summing up at the end. His concluding words are not, though, just a summary of what has gone before. Rather, he ends by raising more questions, those that are central to the future of legal integration in the EU and, indeed, the EU itself. His versatility allows him to draw on literature from the U.S. and apply it to European questions. I would propose that many American political scientists could benefit from looking to Europe and other regions for concepts and theories that might aid in explaining political or legal trends here. This volume would be a very good place to begin.

Copyright 1995