Building a European Law State: Rule through law in the European Union

Scholars have long debated the European Court of Justice’s (ECJ) role in propelling European integration: "the judicial construction of Europe." Yet we know far less about the politics surrounding the institutional expansion of the EU legal order itself: what we might call "the construction of the European judiciary." When the EU judiciary was established, it comprised a single little-known court with a temporary lease in Luxembourg; it was composed of seven lonely judges assisted by a mere handful of staff members; it struggled to forge ties with national judges and to be taken seriously by civil society. Today, the ECJ sits atop an expansive federal judicial order, with dozens of judges and thousands of staff, and an extensive network of national courts acting as EU courts of first instance as they hear social disputes that regularly trigger referrals to the ECJ and the application of EU law. How do we make sense of this remarkable institutional development and its increasingly visible limits? Applying insights from the literatures on state building and historical institutionalism, we propose a theory of law and political development to analyze and contextualize the decades-long, ongoing project of constructing this European judiciary. We conceptualize the EU as a "law state" – a polity that, in some ways like medieval European states, the Holy Roman Empire, or the antebellum American state, compensates for a lack of centralized coercion by forging an expanding network of judicial institutions. In law states, courts are neither mobilized to constrain coercive power (rule of law) nor wielded to concentrate it (rule by law). Rather, the EU law state illuminates a third pattern of law and political development: rule through law, or the mobilization of judicial institutions to build infrastructural power and social embeddedness in the absence of coercive capacity. Leveraging our theoretical framework of law states and rule through law, our goal is to shed new light on the distinctive strengths and vulnerabilities of the institutional development of the EU’s judicial institutions.