Episode 2.7: Europe's Hidden Legal Architects, with Tommaso Pavone

Today on Scope Conditions, we’re talking about the origins of supranational power.

The European Union has no army. It levies no taxes. Covering a population of 450 million, its administrative bureaucracy is on par with that of a moderate-sized city. And yet the EU’s treaties, directives, and regulations – 50,000 pages worth – are enforced daily across Europe, covering domains from labor relations to financial markets to immigration, consumer protection, and pharmaceuticals. 

What’s more, EU law trumps national law. Judges – national judges – strike down actions by their own governments when those actions contravene EU rules. 

So how did Europe get here? How did European law – which didn’t even exist 70 years ago – become supreme, in a very concrete sense, across 27 independent states?

As our guest argues, it wasn’t overzealous, activist judges who made European law supreme. In fact, in the early decades of European law, most judges knew little about it and preferred not to go near it, let alone overrule their own country’s policies in its name. Dr. Tommaso Pavone, an assistant professor of Law and Politics at the University of Arizona, tells us that the real architects of EU ascendancy were a ragtag band of entrepreneurial lawyers – lawyers who worked behind the scenes to coax reluctant judges into referring cases up to the European Court of Justice – even to the point of writing the judges’ referrals for them. 

We have a fantastic conversation with Tom about his forthcoming book, The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe. In the book, Tom tells the story of a scattered set of actors whom he calls the “Euro-lawyers”: a group of attorneys who had survived the calamity of World War II and believed in the liberal project of European integration. The Euro-lawyers saw that – by crafting the right test cases, educating judges in European law, and sometimes literally ghostwriting their referrals and judgments – they could set in motion a juridical logic that would turn ordinary national courts into street-level enforcers of EU law. 

This is a conversation about how on-the-ground actors – who have little formal authority of their own – can bring about massive macro-institutional change by identifying and exploiting ambiguities in the rules of the game. 

We also talk with Tom about how the argument of his book took shape. He tells us about the moment when the whole direction of the project shifted, from a study of the judges who signed the referrals to an examination of the lawyers who put them up to it. We talk about how he reconstructed the behind-the-scenes work of 12 teams of attorneys who, in the key period, solicited almost half of all referrals to the European Court of Justice. 

And we press Tom on what all of this Euro-lawyering means for democracy. How should we feel about the fact that the European project emerged, in part, from the stratagems of these unelected elites operating by stealth? And what about today’s Euro-lawyers? In an era of mounting Euroskepticism and rising populism, is there scope for them to leverage the European legal order to protect liberal institutions from the predations of would-be authoritarians?

Works discussed in the episode:

Alter, Karen J. 2014. The New Terrain of International Law: Courts, Politics, Rights. Princeton: Princeton University Press.

Dezalay, Yves, and Bryant Garth. 2008. “Re-structuring States by Exporting Law: American Law Firms and the Genesis of a European Legal Market.” In Paradoxes of European Legal Integration, edited by Anne Lise Kjær, Mikael Rask Madsen, and Hanne Petersen, 76–88. Aldershot: Ashgate.

Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press.

Graber, Mark A. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7(1): 35–73.

Hirschman, Albert O. 1991. The Rhetoric of Reaction: Perversity, Futility, Jeopardy. Cambridge: Belknap Press.

Mann, Michael. 1984. "The Autonomous Power of the State: Its Origins, Mechanisms and Results." European Journal of Sociology 25(2): 185-213.

Scott, James C. 1998. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press.

Vauchez, Antoine. 2015. Brokering Europe: Euro-Lawyers and the Making of a Transnational Polity. Cambridge: Cambridge University Press.

Weiler, Joseph H. H. 1991. "The Transformation of Europe." The Yale Law Journal, 100(8): 2403–2483.