IMAGINE/iCourts seminar with Aristel Skrbic

Shoring up Authority of the CJEU: On the Ideology of Legitimacy

Authority of EU law, and of the CJEU  in particular, has come under increasing stress over the past years.  The most acute manifestation of this problem is the growing number of ultra vires judgements by high national courts, from Germany to Poland, which explicitly challenge the supremacy of the Court and one of the core structures of the EU legal system.

In this paper I draw on Paul’s Ricoeur’s interpretation of Max Weber’s concept of Herrschaft or authority.  This theoretical framework allows me to advance a number of arguments that can help explain the current crisis from a perspective currently lacking in the literature. The upshot is a more fine-grained understanding of the discourses which aim to legitimate the authority of the CJEU, allowing us to appreciate the successes and failures of these strategies of legitimation. 

In the first part of the paper, I lay out the current predicament, suggesting in what ways the authority of the CJEU is under stress and providing some background on how we got here. In part two, I reconstruct the theoretical framework of the Ricoeur-Webber nexus. Part of Webber’s notion of authority is the gap between the claim to authority and the belief with which that claim is met. Ricoeur suggests that there is a type of ideological discourse which takes place in order to bridge the gap between claim and belief. In the final part of the paper, I employ this theoretical apparatus to examine a number of discursive strategies employed by the Court such as collegiality and incrementality, and by its academic defenders such as constitutional pluralism. In conclusion, I suggest that these strategies have produced ambivalent results, often with great success in the short and medium term but with potential long-term downsides for the perception of CJEU’s authority.

Aristel Skrbic is a legal and political philosopher with broad research interests in the areas of European integration, climate change, and migration.

He is a Fellow of the Flemish Research Council at the Institute of Philosophy, University of Leuven.

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