The Rule of Law in European Integration: The Path of the Schuman Plan

FOREWORD • 2013

ALTHOUGH THIS BOOK received a few polite reviews when it came out, the Yale University Press let it go out of print almost immediately, and turned its rights back to Stuart Scheingold, who managed to convince Greenwood Press to put out an edition that was so expensive that only a few libraries could afford to purchase it. But then no one checked it out of these libraries. It was not read. It was not cited. It disappeared with barely a trace.

Those few who did read it were largely puzzled by what they regarded as the author’s bizarre thesis: courts create constitutions! Judges are adroit politicians! That a new, unprecedented type of court was uniting Europe! What folly, but maybe to be expected from a naïve American who was trying to understand abstruse European ways.

Whatever the case, the book had no impact to speak of. Yet when I read it for the first time, some thirty-five years after its initial publication, I was struck by its genius, and its obvious truths. Indeed, in the intervening years a library of research has emerged that supports the book’s thesis. But the book remains, in my view, the definitive account of the formative years of the creation of the Constitution of Europe. So, why was it ignored?

It could not be its quality. The book reveals Scheingold’s fine craftsmanship: concise, clear, and well-reasoned, and supported by ample evidence. It came with impressive credentials: originating as a Berkeley dissertation, supported by fellowships from the Social Science Research Council and Harvard’s Institute of International Studies, published by the Yale University Press. It wasn’t for lack of standing.

During his dissertation fellowship year in Luxembourg, Scheingold was the only American and the only non-lawyer among the first cohort of researchers to have access to the European Court of Justice. As Scheingold later recounted it to me, these lawyers concentrated on trying to tease out doctrinal coherence and consistency in the Court’s rulings, while he, a political scientist trained in international relations and legal realism, asked, Has the Court of Justice . . . made a real contribution to the success of the Communities? (1965: vii) The primary concern of this study was to document the reciprocal relationship between the law and the politics. His overarching questions: has the Court functioned in such a way that it has strengthened European integration? Has it established a viable new political system? His answer was a resounding Yes. But, as Scheingold’s subtle analysis reveals, its success was not because the Court developed a consistent and compelling body of law. It did not. Rather, as he shows, it is because its judges conceived of their task as half law and half politics, and zigged and zagged back and forth as they thought necessary. Successful integration, he maintains, depended upon the ability of the Court to find common ground and consolidate normative authority when it could, and to remain silent and avoid acting when it could not. It is a powerful account of the birth of a new institution.

If I am right, why did scholars fail to recognize the tremendous insights in the book? Why wasn’t Scheingold the talk of the town? Why didn’t he receive awards in public law? In international relations? An appointment in IR at Harvard? And more to the point, why was his project stillborn and almost totally ignored?

Only much later it was acknowledged as a pioneering study. In her 1993 review of the field, Anne-Marie Slaughter acknowledges Scheingold’s singular achievement. For decades, she writes, Stuart Scheingold stood virtually alone as a political scientist (at least on this side of the Atlantic) seriously interested in the ECJ (1993). One would like to think that Scheingold was simply ahead of the times, and that eventually his book led others to see the light and catch up. Certainly since the 1980s, a host of distinguished scholars have traced the rise of Europe and located a proximate cause as the actions of the European Court of Justice from the 1950s onward. And in their arguments they confirm, elaborate on, and extend observations made by Scheingold much earlier. But it does not appear that these scholars read Scheingold. Apart from Anne-Marie (Slaughter) Burley’s acknowledgement (1993), and Burley and Mattli’s (1993) brief observation that Scheingold is a noteworthy exception, no other scholar, so far as I can tell, even cites the book (see, e.g., Shapiro 1980; Stein 1981; Krislov et al. 1986; Weiler 1981, 1991; Stone 1994; Stone Sweet and Brunell 1998). Scheingold appears to have been so far ahead of his time and his work interred so long that the new generation of integration-through-law scholars had to discover anew rather than build on his findings. Being first does not always bring the recognition it deserves. Leif Erickson got here first; Columbus gets the credit.

So, what was it that led this transformative book to be ignored? Here’s my account, first of the importance of the book, and then why its importance was not seen.

Political integration—that is, the formation of nation-states—is usually achieved by fiat and force, and by the force of imagination (Anderson 1991). It is imperial by its very nature. The nation is imagined, and then forces from the center move to swallow up the periphery. Or colonial powers impose boundaries. But integration or at least partial integration can occur through other means as well: leagues, alliances, confederations. Parties—sovereign states—band together to pursue common objectives and create NATO, SEATO, NAFTA, OAS, AU, and the like. In these arrangements member states enter into treaties at will and can withdraw at will. Not surprisingly this is a lesser form of integration.

Federation is still another form of integration; subunits cede (or have taken) some of their sovereignty, and central authority is limited in some way. Thus central authority has autonomy over at least one sphere of governance (e.g., national defense), and member states possess sovereignty over at least one area (Riker 1964; Feeley and Rubin 2008). Here too the colonial impulse is at work. Federations usually occur when weaker nations are not strong enough to fend off their powerful neighbors, but are strong enough to prevent themselves from being wholly swallowed up. The result may be federalism, a tragic and unstable compromise (Feeley and Rubin 2008). Admittedly some come into existence by agreement due to shared mutual interests such as defense (the U.S., Switzerland), but they are few and far between. Most federations are unstable and either resolve into a unitary state for all practical purposes or fall apart.

European integration has followed none of the well-known patterns. Established by treaties, the initial post-war effort at integration envisioned more, much more, than a league or an alliance, but has not (yet) jelled into a federation. Although it was an enterprise in which member states identified and pursued their mutual self-interest, its founders aspired to more. This is captured in the name for the effort: The European Coal and Steel Community; the European Economic Community; the European Atomic Energy Community; and later the European Community, and still later the European Union. Some cynics argue that these are all euphemisms for what is nothing more than a free trade zone, but there is too much evidence to suggest that it is much more. Certainly its history has differed from other alliances’ joint efforts commenced by treaty. But it shares a commonality with other forms of political integration; it was imagined, the imagination was acted upon, and the imagination was realized.

The European Coal and Steel Community and the other community building arrangements were formed by treaties. But when drafting them their authors envisioned a community—a distinct governing arrangement—that would emerge, and to this end created new institutions of governance. Among the most robust of them was the new European Court of Justice. At the outset and to this day, the European community has not followed a federal path that some may have hoped it would. But it did establish supranational institutions charged with supranational governance and a court charged with harmonizing national laws and forming new supranational norms. To this extent, these new arrangements were understood (though perhaps only generally) to supersede particular national laws and practices of the member states.

Yet the new entity did not have the familiar accoutrements of a modern nation-state; a well-defined and powerful legislature and executive. That is, the new community—at the outset and since, through its several iterations—did not have a full-blown constitution doing all the things a constitution does, allocating governing powers, defining limits of power, specifying rights. However, the treaty did provide for an ill-defined joint High Authority and a type of parliament. And it provided for a court—The European Court of Justice—a single judicial organ, whose structure and mission, in contrast to the executive and legislative authority, was more well-defined and substantial, and whose members were more cosmopolitan.

Scheingold showed that its efforts, deftly melding law and politics, were a success beyond mere dispute resolution and development of legal doctrine. His thesis was novel and exciting—indeed pathbreaking—and he supported it with prodigious research and insight. It was well-grounded in the evidence he explored during a damp and lonely year in Luxembourg trying to make sense of the work of the Court, and then another year back in Berkeley writing up his findings. He was well aware that he was present at the creation of a powerful new institution (1965: vii). Yet he stood virtually alone in seeing what such an institution, using its power this way, could realize in terms of political integration. The resulting book was a masterpiece. But I do not argue that it has had a powerful but surreptitious impact on our field. As I said, it had virtually no impact.

I identify three factors that I suspect undermined the appeal of the book when it first appeared, and which taken together may account for its failure to capture scholarly imagination. I am not offering any sociological theory for the reception of innovative ideas, only suggesting factors that seem to have worked against this book at the time. My claims: the book (1) was ahead of its time by close to two decades, and thus out of touch with then-current scholarly trends; (2) was written in the language of structural functionalism just as that theory was on its last legs; and (3) characterizes law in ways that were and continue to be unfashionable in political science and sociolegal scholarship. Any one of these problems might have been enough to soften its impact; together they were fatal.

Ahead of its Time. Graduate students often are at the forefront of new ideas. If they are brilliant and have been aggressive in graduate school, they have learned to draw on the best of several of their mentors and create an agenda that is bigger and better than the sum of the parts. If they have been fortunate, they have stood on the shoulders of giants and seen that much farther. Scheingold was brilliant, aggressive, and fortunate. He worked with the best: Ernst Haas, a pioneer in the study of European integration, and Yosal Rogat in jurisprudence. And long before interdisciplinary studies became fashionable, Scheingold made his way across campus to the law school to learn from Stefan Reisenfield and Richard Buxbaum, two German émigrés who came to dominate the field of European commercial law (which was what European integration was all about). Scheingold’s project was more than the sum of the interests of these intellectual giants. When he set off for Luxembourg, he went with new ideas and a far-reaching agenda.

As Stuart recounted, he was the only American and the only political scientist in that first set of students to study the workings of the relatively new European Court of Justice. The other nine were young European legal scholars. They liked Stuart—who could not?—but thought him slightly mad, and an interloper in a temple of the guild. His questions made no sense to them (though they did to the more discerning of the judges he interviewed). His dissertation—and later book—was not a lawyer’s analysis of doctrine but a political scientist’s analysis of the politics of law. This approached blasphemy to his fellow scholars in Luxembourg that year. When his book came out they ignored it. So too did international relations scholars of the era, who were interested in more substantial international organizations than this fledgling court. American public law scholars ignored it; they did not focus on inferior courts. This project was quite simply out of sync with the scholarship of the times, and no one was perceptive enough to recognize its genius. He was a pioneer in a wilderness, whose messages about what lay ahead did not get through.

The Decline of Structural Functionalism. No doubt the book’s challenge was exacerbated by the theoretical approach Scheingold took. Structural functionalism may very well have allowed him to ask the right question—what established and sustained the new constitutional system? But its terminology was not likely to win him any converts in 1965. Stuart Scheingold came of intellectual age at the height of social science’s infatuation with structural functionalism, and his dissertation-into-book reflects it. It is an exemplary application of Talcott Parsons’ classic structural functionalism as adapted to political science by David Easton (1965) and international relations by Ernst Haas (1958). This theory provided a ready-made framework for his subject. What structures functioned to sustain and integrate this new system? The theoretical glove fit snuggly over the hand of the new Europe.

However, the problem was that just as structural functionalism reached its apex of influence in the social sciences—in anthropology, psychology, sociology, political science, history, and even into economics—its elaborate schema came tumbling down. The buildup of structural functionalism in the social sciences took perhaps fifty years, but its demise can almost be measured in months. In the early 1960s, a handful of philosophers of science turned to examine this new and appealing theory which was sweeping the social sciences. They made mincemeat of it. In effect they declared that the emperor was wearing no clothes. Instantly everyone saw the truth, and in short order books and articles that once had been memorized by a generation of graduate students could not even be remaindered. One day functionalist theory was queen of the social sciences; the next it was the relic of a superstitious past. This all occurred just as Scheingold’s study was being transformed from dissertation to book. By the time the book appeared, its language was out of fashion. The theory on which it was built had been thrown upon the scrap heap of scholarly history. What is sad is that structural functionalism added nothing, absolutely nothing, to Scheingold’s analysis. But this did not make a difference; the book was ignored, and structural functionalism was part of its undoing.

Had Scheingold written the book a year or two later, after functionalism’s demise, he might have employed the language of strategic choice, and the book might now be paired with Walter Murphy’s Elements of Judicial Strategy (1964), or Robert McCloskey’s The American Supreme Court (1960), since both books likewise reveal how shrewd judges know just how far to go, when to act and when to be silent. But note that these two books are about the United States Supreme Court!

Rights Consciousness and the Failure of the Sociolegal Imagination. The Rule of Law in European Integration does not focus on the U.S. Supreme Court. It focuses on European law and at the time a virtually unknown court. Nor does it focus on the behavior of judges, or the impact of their decisions in any behavioral sense. It focuses on law, and takes for granted its constitutive significance. (Here one gets a foretaste of the argument in Scheingold’s recognized masterpiece, The Politics of Rights.) Thus it did not appeal to the new judicial behavior movement. But it does deal with legal consciousness, and one might have thought that the emerging group of law and society scholars would have picked up on it. But they did not. Why? I believe it is because political scientists and sociolegal scholars have a narrow understanding of law, and hence a narrow research agenda that unwittingly ignores important areas of legal activity such as the issues Scheingold focused on.

Most of this diffuse field reflects one of three dominant approaches to law in the social sciences. One conceives of law in criminal law-like terms—Holmes’s bad man or the commands of John Austin’s sovereign—and focuses on commands and what happens or does not happen after they are issued. Another focuses on rights, and the conditions under which they are secured, mobilized, or enforced. A third focuses on judicial behavior, and seeks to account for judges’ votes in terms of their values or attitudes.

Scheingold focused neither on compliance nor rights, nor judicial behavior narrowly construed. He examined the constitutive power of law. He showed how the judges on the European Court of Justice imagined and then subtly created and nurtured a new idea, a new way of thinking, a new set of expectations, and ultimately a new institution. It was accomplished through deft management of workaday cases. The judges, supported by powerful visionaries and ambitions of their own, were able to define relationships, confer status, strengthen institutions, and in so doing imagine and then realize a new political reality for Europe. The awesome power of the Court that Scheingold describes cannot be characterized in terms of commands or rights or impact or implementation. It is about the institutionalization of a vision, the construction of reality. It is a wonderful realization of Benedict Anderson’s imagined communities (1991), and it is a partial challenge to his own theory of the debilitating effect of the myth of right he developed later. Public law scholars of the time simply missed it.

Conclusion. This account is a depressing truth, and one that Scheingold was reluctant to talk about. However, we are fortunate that he was so resilient, and that after this disappointment he was not disabled. He shifted focus and his career flourished to such an extent that others of us in the field, if honest, we must all admit to a tinge of envy at his sustained brilliance. We see here in his first book the elegance that was present in the ten other books that followed. He emerged fully formed.

But this book is important for more than historical interest in Scheingold’s oeuvre, or as a footnote about the development of a new field. The Rule of Law in European Integration remains the definitive analysis of the first crucial decade of the formulation of the Constitution of Europe by at the time a little-known court. It must be read by all serious scholars of European integration. It is a joy to see it back in print again.

MALCOLM M. FEELEY

Claire Sanders Clements Dean’s Professor

Jurisprudence and Social Policy Program

Boalt Hall School of Law

University of California at Berkeley

March 2013

REFERENCES

Anderson, Benedict. 1991. Imagined Communities: Reflections on the Origins and Spread of Nationalism, Rev. ed. London: Verso.

Burley (Slaughter), Anne-Marie. 1993. EC Roundtable: Law. (Unpublished paper presented at the European Union Studies Association). Washington, D.C.: May 27-29.

Burley (Slaughter), Anne-Marie and Walter Mattli. 1993. Europe Before the Court: A Political Theory of Legal Integration. 47 International Organizations 1.

Easton, David, 1965. A Systems Analysis of Political Life. Englewood Cliffs, N.J.: Prentice-Hall.

Feeley, Malcolm and Edward Rubin. 2008. Federalism: Political Identity and Tragic Compromise. Ann Arbor: University of Michigan Press.

Haas, Ernst. 1958. The Uniting of Europe. Stanford University Press.

Krislov, Samuel, Claus-Dieter Ehlermann, and Joseph Weiler. 1986. The Political Organs and the Decision-Making Process in the United States and the European Community. In Integration Through Law, Methods, Tools, and Institutions: Political Organs, Integration Techniques and Judicial Process, eds. M. Cappeletti, M. Seccombe and J. Weiler. Berlin: Gruyter, 3-112.

McCloskey, Robert G. 1960. The American Supreme Court. Chicago: University of Chicago Press.

Murphy, Walter F. 1964. Elements of Judicial Strategy. Chicago: University of Chicago Press.

Parsons, Talcott. 1937. The Structure of Social Action. New York: McGraw-Hill.

Riker, William H. 1964. Federalism: Origin, Operation, Significance. Boston: Little Brown.

Scheingold, Stuart A. 1965. The Rule of Law in European Integration: The Path of the Schuman Plan. New Haven: Yale University Press.

Scheingold, Stuart A. 2004. The Politics of Rights: Lawyers, Public Policy, and Political Change, 2nd ed. Ann Arbor: University of Michigan Press.

Shapiro, Martin. 1980. Comparative law and Comparative Politics. 53 Southern California Law Review 537.

Stein, Eric. 1981. Lawyers, Judges, and the Making of a Transnational Constitution. 75 American Journal of International Law 1.

Stone (Stone Sweet), Alec. 1994. What is a Supranational Constitution? An Essay in International Relations Theory. 56 Review of Politics 441.

Stone Sweet, Alec and Thomas L. Brunell. 1998. Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community. 92 American Political Science Review 63.

Weiler, Joseph H. H. 1981. The Community System: The Dual Character of Supranationalism. 1 Yearbook of European Law 257-306.

Weiler, Joseph H. H. 1991. The Transformation of Europe. 100 Yale Law Journal 240.

PREFACE • 1965

{page vii in original}

IN THE FIRST ten years of its existence, the Court of Justice of the European Communities handed down well over 100 binding decisions involving the Community officials, member governments, and business enterprises—large and small. Never before have national governments undertaken and fulfilled such widespread international legal commitments. Ordinarily international politics is characterized by highly fluid relationships in which legal norms are out of place.

In this instance the legal commitments were, of course, undertaken as part of the general plan to integrate Europe—first within the framework of the European Coal and Steel Community and later in connection with the Common Market and Euratom. The common purpose of European union, and the solid economic foundations on which the Communities rest, give to European law a solidarity and a coherence which traditional international law lacks. Yet, as with all other facets of the European Communities, the legal systems are expediential—50 per cent compromise: the member states have given up only a portion of their sovereign prerogatives; and 50 per cent experiment: nobody knows what sort of system is best suited to community building.

After ten years, it is time to step back and assess the results of the experiment. Has the Court of Justice successfully adjusted to its environment? Conversely, has the Court made a real contribution to the success of the Communities? Previous studies of the legal and political aspects of European integration have tended to emphasize one to the exclusion of {viii} the other. The primary concern of this study is to document the reciprocal relationship between the two.

Accordingly, I have relied almost exclusively on primary sources. The Court reports and related documents, other official documentation, and interviews with attorneys and officials of the Coal and Steel Community and the national governments form the backbone of my research materials. Also vital was Europe CECA, the daily newsletter devoted to Community affairs; with its Common Market counterpart, Europe CEE, it is clearly the best source of information on the problems of European integration. A heavy reliance on primary sources often indicates a meager supply of secondary materials. This is certainly not the case here. My study draws upon only a tiny portion of the vast body of legal literature on the Coal and Steel Community. A sampling of these materials indicated that the points raised were often not directly relevant to the issues which concerned me. Moreover, as a non-lawyer I was reluctant to get involved in the many difficult and unresolved questions raised by the decisions of the Court of Justice. Finally, I wished to maintain the flow of my general arguments, and this was done by not pursuing interesting, but peripheral, matters.

In assessing the part played by judicial review in the growth of the Community, a detailed analysis of the case law of the Court has been combined with an institutional inquiry. The case law presents a virtually complete legal history of the first ten years of judicial review.* Thus, material not otherwise available has been brought together, but this legal history is not offered for its own sake. It was the means to an end—providing the necessary empirical springboard for a thorough treatment of the techniques and role of the Court of Justice.

Before turning to the study itself, let me acknowledge at least a few of my debts. Without the generosity and encouragement of the Social Science Research Council, which financed {ix} a year’s research in Europe and an additional year in Berkeley, the project would not have been possible. The first year’s grant enabled me to gather my material at the source, and the second afforded me the intellectual luxury of unencumbered reflection and writing.

In Europe, the cooperation of Community officials was absolutely vital. While it would be impossible to acknowledge all those who assisted me, there are several whose help cannot go unmentioned. To Mr. H. Sperl and his staff at the library of the Court of Justice I owe a particular debt for their gracious assistance. I am also indebted to Mr. Charles Baré and Dr. Erich Zimmermann of the High Authority who opened the doors enabling me to speak with Community and national government officials. Special thanks are also due Me. Raymond Baeyens of the High Authority legal service for assistance and encouragement in Luxembourg, as well as in the United States after my return.

At the Court of Justice, initial introductions by Dr. Paolo Gori were invaluable, as was the social entrée provided for two damp and lonely Californians. Special mention must be made of Professor Sergio Neri, who combined friendship and intellectual companionship in generous proportions. To Madeleine Ledivelec, the Euratom librarian, untold thanks are due. Her seemingly unlimited generosity, hospitality, and warmth can never be adequately expressed—or repaid. Finally, I must offer a collective expression of gratitude to all national and Community officials and enterprise attorneys—particularly Me. Jean de Richemont, and Dr. Werner von Simson—who were so generous with their time and so patient in their responses to my questions.

My debts are not, of course, limited to Europe. From its inception, Professor Ernst Haas has guided the growth of this project. Moreover, the author owes to Professor Haas a major portion of his intellectual growth as a graduate student at the University of California. I must also mention {x} Professor Yosal Rogat, now of the University of Chicago, who sparked and nurtured an interest in public law and jurisprudence. At the same time, I am grateful to the other members of my dissertation committee—Professor Stefan Riesenfeld, who helped prepare me to tackle a venture in European law, and Professor John Schaar who prodded me to explore the jurisprudential possibilities of my study.

A Ph.D. dissertation is not necessarily a publishable manuscript, and in my case the transformation has been slow and demanding. It was again necessary to call for help and so I am, in many cases, doubly indebted to those mentioned above. In addition, there are four names to add to the list. Professor Eric Stein of the University of Michigan Law School provided me with a detailed and invaluable critique of the entire manuscript. Professor Richard M. Buxbaum of the Boalt Hall School of Law, University of California, and Professor Leon Lindberg of the University of Wisconsin have given friendship, counsel, and encouragement. And in long and detailed discussions, Richard E. Dudley has provided patient and discriminating criticism of all facets of this study. The editors of the Journal of Public Law have kindly permitted me to include here material which originally appeared in that journal.

Finally, for whatever stylistic grace and simplicity there may be in this work, I am indebted to Ruthie for her untold readings and countless battles with an author’s stubborn pride. Moreover, without her unflagging faith through seemingly endless years of graduate work, neither this manuscript nor the dissertation from which it grew would have been successfully completed.

STUART A. SCHEINGOLD

Rome

January 1965

NOTE TO THE PREFACE

* But see infra, p. 53.

1

INTRODUCTION

1

SUPRANATIONALISM AND JUDICIAL REVIEW

{page 3 in original}

THIS STUDY IS devoted to the Court of Justice of the European Communities. The Court is the single judicial organ of the three Communities comprising an incipient united Europe. The ultimate shape of an integrated Europe remains very much in doubt. Nevertheless, it seems fair to assume that the Court will remain an integral part of the final construction. If there is criticism of some of its work, nobody questions its legitimacy or threatens its existence.

It is my goal to define as precisely as possible the role which the Court has assumed, and to find standards by which to judge its success.

Although the Court serves as the judicial arm of three European Communities, it is with the Coal and Steel Community (the Schuman Plan) that we shall be concerned. This restriction is imposed by the extremely limited experience of the Court with the operation of the two newer communities, the European Economic Community—better known as the Common Market—and the European Atomic Energy Community (Euratom).

Adjudication in a Federal System

As David Easton has pointed out, it is the task of a political system to settle authoritatively the conflicting claims of individuals {4} and groups which cannot be resolved through nonpublic procedures.[1] In his own terms, it is the task of the political system to provide an authoritative allocation of values for a society.[2] There is no need to assume a central governmental organization, and Professor Easton cites the authoritative allocation of values in international society by the major powers as a case in point.[3] However, given the existence of a central government, it can be assumed that conflicts are resolved according to established institutional patterns. The failure of interest groups and political parties to resolve conflicts privately focuses their efforts on the formal governmental institutions—legislative, administrative, executive, and judicial.

The choice is broadened somewhat under a federal form of government. Most simply defined, federal government divides political power between a central and local government. Consequently, groups and individuals may appeal to either level, although the particular division of powers may limit decisions on certain questions to either the central government or the local units. While the judicial power is an integral facet of both federal and unitary systems, its role in unitary systems is often sharply limited. Thus, it is the normal pattern in parliamentary systems to subordinate the judicial process to the legislative branch. Judicial review of legislation, to assure conformity with a constitution standing above both institutions, is an exception to the