Ongoing Controversies over Methods in EU Law

Since the publication of last year’s symposium “Controversies over Methods in EU Law”, methodological issues are still pervading contemporary debates in EU law. The reasons for this have not changed. The multiple crises that the European Union is experiencing have led EU law scholars to question their classical conception of EU law: a law of integration that should more or less naturally lead to a constitutional or federal order. The promises of emancipation that EU law might have held have fizzled out, and the disconnection of EU law from European societies or actual territory does not seem to be answered by classical institutional or constitutional perspectives. These crises have also led scholars to question their relationship with the European institutions, which have been central to the development of the core concepts of EU law and of EU law as a disciplinary field.

EU lawyers largely agree on the need to go beyond the classical opposition between the two perspectives that have long dominated the field of European studies. On the one hand, the purely doctrinal approach, which limits itself to seeking answers to particular legal problems or to systematizing the state of the law. On the other hand, the purely strategic perspective, which views law as a mere reflection of external oppositions such as power or economic struggles. Lawyers are increasingly aware of the limits of a purely doctrinal model and debate how to improve it or how to replace it with new approaches. At the same time, scholars from other disciplines are increasingly focusing on the technical dimensions of EU law, with their work gaining more attention from legal scholars. If there is controversy over methods, it stems from a shared recognition of the need for debate, as well as an awareness of what is at stake: a reconfiguration of European studies.

Criticism of EU law is not new, but the growing body of critical work on EU law has sparked discussions of a “critical turn”. In a broad sense, this refers to the rejection of the traditional paradigms of “the law of integration” or “integration through law”, which have long dominated EU law, as well as, more generally, to substantial criticism of the EU and its law – or specific aspects of it. Another major source of methodological questions arises from the more recent, yet widespread, use of empirical approaches in EU law. Related to this, the “law in context” approach, developed in the 1980s and ‘90s, has become increasingly widespread, though it “has remained in the sidelines” at the same time. Building on this interdisciplinary momentum, a number of recent perspectives have emerged, drawing on the methods of another disciplines, such as history or philosophy, law and/or political economy, or law and geography. This is also true for various works that share a common focus on challenging instrumentalist and functionalist interpretations of EU law, instead emphasizing its culture, narratives or technicalities.

The abundance of projects is giving way to a landscape that is in the process of being recomposed. What the various projects share, however, is a questioning of method, and in this sense, one can speak of a “methodological turn”. That said, focusing solely on methodological controversies does not necessarily provide a representative picture of the state of the art. The success of critical approaches or the law in context perspective in some academic spheres does not imply that they have become dominant. A classical doctrinal approach – grounded in the paradigm of “the law of integration” – is still very much present in the dissemination, day-to-day teaching, and practice of EU law. Without implying a radical methodological renewal, a potential outcome of the current crisis could be a “reflexive turn”. EU law scholars may increasingly be called upon to question their methods and practices and to reflect on their role in the production of European legal knowledge.

This symposium is the fruit of a series of online seminars organised by the University of Aix-Marseille over the past three years. The aim of this seminar series has been to provide an overview of the methods used by EU lawyers – both old and new, mainstream and non-mainstream – by putting them into perspective and questioning their underlying assumptions. Throughout this seminar series, EU law scholars have been asked to engage in a reflexive exercise, making their methods and their position in the ongoing debate explicit. The participants were invited to consider and respond to questions such as: What methods do you use when studying EU law, and what do these methods imply? With whom and against whom do you position EU law? Do you find it valuable to bring attention to an author who, in your view, has been unduly neglected in EU legal studies, or, on the contrary, to call for a new approach to EU law?

The aim of this collection of short methodological statements, completing last year’s symposium, is not to freeze the debate, but to complete the overview of the different positions at a given point in time. This will render the controversies more visible and provide a foundation for further discussion. It shares with other work the hypothesis that “to denaturalise the epistemic and ontological groundings of mainstream approaches to EU law” could  help to “demarginalize approaches more peripheral to the centres of power in EU law making and in EU legal academia”. It is hoped that a reflexive turn in EU law will lead to a wider dissemination of the history of the discipline and the debates, both past and present, that have shaped it. How many students, professionals and even professors of European law are unaware of the significance of approaches such as “the law of integration”, “integration through law” or “law in context”?  How many of them are unaware of the contemporary debates that permeate the discipline?

This relative ignorance of the history of EU law as a discipline and of the methodological debates may be attributed to the fact that lawyers are not always accustomed to making their methods explicit but also the relative youth of EU law as a field. If the way EU law is researched, taught, and practiced is not self-evident but rather controversial, then conscious choices must be made, and these choices should be presented and discussed. We hope that these methodological controversies will not be perceived as a sterile academic exercise, but as an opportunity to reflect on the methods employed by researchers, practitioners and teachers of EU law. Furthermore, we hope that this reflection will be extended to those who will become researchers, professionals and professors in the future.