LAWYERING EUROPE: EUROPEAN LAW AS A TRANSNATIONAL SOCIAL FIELD
by Antoine Vauchez and Bruno De Witte (eds). Oxford: Hart Publishing, 2013. 306pp. Cloth £50.00 / $100. ISBN 9781849463782.
Reviewed by Robert Dingwall, Dingwall Enterprises/Nottingham Trent University robert.dingwall [at] ntlworld.com
As I write, Europe has just completed a round of elections to the European Parliament that are expected to give around one-quarter of the seats to nationalist parties opposed to the entire concept of the European Union (EU). Whatever the exact outcome, there can be little doubt that the project of an ‘ever closer union among the peoples of Europe’ envisaged by the Treaty of Rome has run into very serious problems of legitimacy with those same peoples. The detailed research and scholarship offered by the contributors to this book goes a long way to explaining how this has come about.
In theoretical terms, the book is strongly influenced by Bourdieu’s work on social fields. The strength of this approach is the way in which it allows the contributors to explore the networks that link the participants in the creation of Europe as a legal form. It is arguable that the analysis could have been more powerful if it had moved on to a more recent theoretical generation and seen Europe as an actant mobilizing a more diverse actor-network. Nevertheless, it does transcend the boundaries of conventional doctrinal analyses to examine how a particular group of lawyers came to occupy a range of positions that connected different networks within the legal field that allowed them to think Europe into existence without necessarily sharing that vision with others engaged in the same networks. This is quite characteristic of the institutional development that created the EU – Julia Evetts and I have written elsewhere about how the various instruments on the mutual recognition of professional qualifications eventually added up to something that looked like the relationship between professions and nation states (Evetts and Dingwall 2002). Through developments such as this, the project of an ever-closer union came to be realized with relatively little public engagement. The Union acquired many of the features of a nation-state without the explicit mechanisms that characterized the creation of the USA, for example.
The contributions here document how a relatively small group of lawyers collaborated to create embryonic institutions that then provided opportunities for others to build careers within them or representing clients to them. As the pool of engaged lawyers expanded, the institutions also expanded, often taking advantage of the periodic crises in European legitimacy to develop new instruments of legality as solutions. Some commentators might regard this as evidence of an elite conspiracy against the peoples of Europe. Others might see it as recognition by the same elite that the greatest challenge for Europe was to find a way of avoiding the nationalist [*246] conflicts that had beset the continent for four hundred years. These had brought it to the brink of catastrophe twice in the twentieth century as warfare had become more industrialized and involved entire populations. In this respect, at least, the institutional entrepreneurs described here have achieved a considerable measure of success with late 20th century conflicts confined to Europe’s periphery and often representing an internal dispute between traditional ethnic nationalists and ‘Europeans’ seeking access to the resources available through membership in the EU.
One of the distinctive features of the book is the way in which it documents the personal interconnections between different institutions of European legality that are often analyzed separately. As individuals move between the EU and the European Court of Human Rights (ECHR), or between national and international courts, they come to share a common cultural and symbolic capital that disseminates a European legal order across these apparently separated organizations. This integrates the focus of the European Court on influencing the internal legal orders of member states and the focus of the ECHR on the international legal order. The co-creation of a European legal order also creates opportunities for the development of a market in European-level legal services, where a relatively small number of international law forms establish themselves as repeat players within the fora and supply legitimacy to them by this repeated engagement. Again, however, this networking tends to exclude ordinary citizens and their agents: European trades unions have been slow to develop the kinds of specialist legal practice that is common in national environments and there is little that would be recognizable as high-level public interest lawyering.
For a UK reader, a particular interest is in the role of the academy as a resource, where European legal careers may begin from a university position and individuals may return to this track at various points before re-entering European institutions in different roles. Similarly unfamiliar to us is the embedding of lawyers within the civil services of mainland European states, in contrast to the UK practice of having lawyers on the margins of policymaking, something that has not served us well in some recent international adventures. In fact, the challenges of integrating the UK and its common law approach are rather undercooked in this collection. This is not necessarily a weakness because the contributors do bring out the impact of the commitment to Catholic beliefs and natural law doctrines that has become established within the European legal field. Such an approach is not necessarily conservative – outside mainland Europe the progressive intent of much modern Catholic social teaching is not understood as well as it should be and it does help to make some of the European Court’s decisions considerably more intelligible. This book’s analysis may not investigate the tensions between civil code and common law approaches but it will help a reader schooled in the latter tradition to a much better appreciation of the distinctive logic that operates within this legal field.
There are also interesting, and unexplored, parallels with the work of Heinz, Laumann and their colleagues on Washington lawyers: in fact the book would have benefitted from a contributor [*247] who could have supplied the kind of network mapping undertaken by that team. It is sometimes hard to keep track of who has had a specific connection with whom at what point in their career, particularly when the same names recur across 13 different chapters by different individuals or groups. Nevertheless, there are some interesting common issues about the role of lawyers in relation to states created on a deliberate foundation of law rather than on a shared cultural or ethnic nationalism. Law, and legal institutions, are required to act as impartial arbiters between these intense sectional claims, which may paralyze conventional political means of resolving disputes. There are clearly similar issues about the way in which the existence of this kind of constitutional foundation allows politicians to avoid addressing issues and then to blame legal institutions for doing so in ways that are necessarily unpopular with some interest groups. Both the Federal Government and the European Union become the focus for citizen discontents, which politicians are free to mobilize because they can rely on legal institutions to produce decisions that political institutions can implement without accepting responsibility for them. At certain points, some citizens clearly find this intensely frustrating.
Another observation in the book might also be worthy of further exploration. This is the suggestion that, having stabilized a supra-national legal order, lawyers have then, as it were, worked themselves out of a job. Now that Europe has a relatively well-articulated legal field, other players can emerge and take advantage of this to play with the bargaining endowments that it has securely distributed. The contributors note, for example, the rise of economists at the expense of lawyers within the policy networks that shape the functioning of the Single Market. Lawyers have been marginalized to more technical advisory and implementation roles rather than an active engagement in the determination of policy. In some respects, the European civil service may be coming to look more like that of the UK, where Treasury economists police all other departments’ plans and actions in terms of their own logic of rationality and evidence.
I have not commented in detail on individual papers because the force of this book really is in the whole rather than the parts. Unlike many edited collections, there is a clear empirical and theoretical unity so that the chapters stand as contributions to the thesis rather than the volume being an aggregation of essays. They are uniformly interesting and well-written, even where the authors are clearly not working in their first language. Either the editors have been very lucky in their contributors or they have been very diligent in improving the writing. Apart from the presentational issues around the book, it is a very coherent and stimulating collection, as should be evident from the tenor of this review. As with all the best work, any reader will both learn a good deal from it and be stimulated to think where the project might go next.
One lament, however. Despite the best efforts of the medical profession to turn me into a cyborg through cataract surgery, the publisher’s choice of font, print density, margin size, etc. makes this book very hard reading. This is particularly puzzling, given that there are at least [*248] 14 printable blank pages at the end, which would surely have allowed a more user-friendly design. (The blank pages might also have been used for an author index or a consolidated bibliography - the absence of either adds to the difficulty of using this book as a starting point for further work.) It is a testament to the quality of the book that I persisted.
Evetts, Julia E. and Robert Dingwall. 2002. ‘Professional occupations in the UK and Europe: legitimation and governmentality’, INTERNATIONAL REVIEW OF SOCIOLOGY 12 (2): 159 171.
Heinz, John P., Edward O. Laumann, Robert L. Nelson, and Robert H. Salisbury. 1993. THE HOLLOW CORE: PRIVATE INTERESTS IN NATIONAL POLICY MAKING. Cambridge, Mass: Harvard University Press.
Copyright 2014 by the Author, Robert Dingwall.