Integration and the Context of Law: Why the European Court of Justice is not a Political Actor

What characterizes the EU today is that it is not only a multi-level governance system, but also a multi-context system. The making of Europe does not just take place on different levels within the European political framework, executed and fostered by different groups of actors or institutions. Rather, it also happens in different and distinguishable social contexts – distinct functional, historical, and local frameworks of reasoning and action – that political science alone cannot sufficiently analyze with conventional and generalizing models of explanation. The European law is such a context and it should be perceived as a self-contained sphere governed by a specific logic and rationality that constitute a self-generating impetus for integration. As a consequence, Europe’s legal sphere and the processes happening within its boundaries have to be carefully distinguished from politics. Following this line of argument, it will be shown that the perception of the European Court of Justice as an actor engaging in judicial politics or politically motivated expansionist lawmaking has to be rethought. Only by examining and analyzing the context of European law as an independent space of reasoning and action may the role of Europe’s high court in the process of integration be adequately captured.