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| Book Title | Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe |
| Book Author | Alter, Karen J. |
| Bibliographic Information | Oxford University Press, Inc., 2003, Pages : 258, $95.00, ISBN 0199260990 |
| Review Title | |
| Reviewer(s) | Volcansek, Mary |
Establishing the Supremacy of European Law: The Making of an
International Rule of Law in
Reviewed by Mary L. Volcansek
Karen J. Alter's new work,
Establishing the Supremacy of European Law (Oxford University Press, 2001)
offers a fresh response to the puzzling question of why national judges so
readily accepted European law and granted it supremacy in national legal
systems. Multiple theories have been proffered to explain a phenomenon that is
essentially counter-intuitive. National courts willingly enforced European law
against their own governments, channeled private litigant questions to the
European Court of Justice (ECJ) and contributed to the erosion of their nations'
sovereignty by their recognition of the supremacy of European law. Alter offers
what she calls a "revisionist explanation," by focusing on the
self-interest of both supporters and opponents of European law; either would
defend either the national rules or the European ones, depending on which would
support their preferred outcome.
Alter is not really providing a
revisionist explanation, but rather she shifted the locus of the argument. She
treats the European Court of Justice and European law as a classical
international court and classical international law. She is unequivocal:
"The ECJ remains an international court" (p. 63). Most scholarship
has moved in the direction of regarding the ECJ, first, as a supranational or
transnational body and or, following the lead of Joseph Weiler, Anne-Marie
Slaughter and Alec Stone Sweet, to calling it, together with national courts,
the "European constitutional courts." Gerhard Bebr long ago cautioned
against viewing the ECJ as an international tribunal just because it was
created by international treaties. Of course, he made a similar plea for
avoiding the temptation of seeing the ECJ as an administrative or
constitutional court. Perhaps the evolution of the Court now merits a
reconsideration of the proper genre in which it should be placed.
Most who have tried to explain
the unexpected phenomenon of national judicial support for the ECJ and an
expanded range for European law have looked from only one perspective: national
courts' support. There has been some treatment of instances of blatant defiance
of European law at the national level, such as the French Conseil d'Etat in the
Cohn-Bendit case and the German Bundesverfassungsgericht in the so-called
Alter rests her argument
primarily on the role of the "twin pillars" of direct effect and the
supremacy of European law over national law that transformed the European legal
system. Those two doctrinal elements enabled private litigants to sue their own
national governments for protection of European rights and thus removed issues
of national compliance from political institutions to judicial ones.
Alter concludes that the problem
of non-compliance-the vicious circle--plagues international tribunals, and
disputes are not taken to international bodies where enforcement is
questionable. Against that, she raises the effective legal system-the virtuous
circle-that builds respect for the rule of law. Direct effect and the supremacy
of European law broke the vicious circle that bedevils classical international
courts and ushered in the virtuous circle. One must accept the ECJ's
designation as an international court for this argument to succeed. Most
scholars focus on these twin pillars as explaining why the ECJ is not an
international court, but rather something else. Alter herself recognizes that
the legal system of
The power of Alter's argument
lies in her explication of how national courts and private litigants did not
necessarily support the expansion of European law, but rather would use
whatever rules, national or European, served their self-interest. Further,
national courts and national governments have influenced the jurisprudence of
the ECJ. The argument might be more forceful were more countries than
Karen Alter's book adds a new
dimension to our understanding of how European law and the ECJ achieved such
solid footing within the national courts of the EU. Do I agree with the whole
argument? I suspect that the test of her self-interest thesis will be what
happens with the next enlargement that brings in new members from Central and
