Publication
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 from the positive law what is good institutional practice.
- Author
- Martijn van den Brink
- Date
- 10 December 2024
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.
Introduction
The increasingly voluminous body of literature exploring methodologies for the study of EU law and the methodological richness with which EU lawyers have come to approach their discipline shows that EU legal scholarship has in recent decades undergone a profound methodological turn.Footnote1 Legal scholars progressively use the tools and techniques from neighbouring disciplines – the social sciences, history, economics, philosophy, and so forth – mostly without compromising what arguably remains the most valuable tool in their toolkit: the doctrinal method. Exactly as one would expect, and hope, they use ‘non-doctrinal research methods as a complement, rather than an alternative, to the doctrinal method’.Footnote2