Grimmel, Andreas. (2010) Judicial Interpretation or Judicial Activism?: the Legacy of Rationalism in the Studies of the European Court of Justice. CES Working Paper Series No. 176, 2010. [Working Paper]
Abstract
During the last two decades, law as a factor in European integration has attracted great scientific interest. Numerous studies and theoretical analyses have been published which have undertaken the task of examining and explaining the role of law in the progress of integration. The European Court of Justice (ECJ) in particular, as Europe's judiciary body, draws much attention in this context. However, the inflexible, mechanistic and universalistic notion of rationality that these works employ leads to serious misinterpretations and unjustified criticism regarding the role the ECJ takes in the course of integration. Within the frameworks of contemporary approaches the Court is perceived as just one more political player among other actors and institutions able to shape the EU in the pursuit of its own rational interests. By outlining the theoretical concept of context rationality, this article shows that the logics of law and judicial law making are based on a non-trivial and non-political rationality and cannot be understood appropriately without paying attention to the context of European law.
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