Controversies over Methods in EU Law

Methodological issues pervade contemporary debates in EU law. There are many reasons for this. Some are specific to the subject matter of EU law itself. The multiple crises that the European Union is experiencing lead 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. These crises may also lead 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. Other reasons relate to the way the discipline is structured. Although certain methodological issues are specific to particular national contexts, EU law scholars have the opportunity to meet and dialogue in transnational arenas. While this can enrich their perspectives, it can also multiply the divisions. Moreover, the disciplinary boundaries of EU law are not always well defined: they vary according to national contexts and sometimes dissolve into European studies.

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, and 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 taking the technical dimensions of EU law as their object and are more and more read by lawyers themselves. If there is controversy about methods, it is because there is agreement on the need to debate but also awareness of what is at stake: a reconfiguration of European studies.

This symposium is the fruit of a series of online seminars organised by the University of Aix-Marseille over the last two years. The aim of this seminar series has been to provide an overview of the methods used by EU lawyers, both old and new, both 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, to make their methods and their position in the controversy explicit. These are some of the questions that the participants in the seminar were asked to answer: What methods do you use and what do these methods imply? With whom and against whom do you think EU law? Do you find it useful to exhume 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 and questions is not to freeze the debate, but to give an overview of the different positions at a given point in time, so as to render the controversies more visible and to provide a basis for further discussion. While this seminar series was mainly addressed to EU lawyers, this momentum of methodological discussion and reflection that EU law is undergoing should be of interest to a wider audience. Indeed, we believe that the current state of EU law can be taken as an exemplary site for a more general reflection on legal methodology, and even more generally, on the structuring and re-structuring moments of a disciplinary field. And, in turn, many of the challenges the EU faces – e.g. in the fields of fundamental rights, digitization, and geopolitics – a fresh methodological perspectives is not only interesting but imperative.

EU lawyers have long borrowed tools and concepts from their colleagues in other fields of law, especially from international lawyers. They rightly continue to do so, but we believe that the exchange can now go both ways: international lawyers and scholars working mainly in national law can gain insights from the controversies developing in EU law. This series has brought together only lawyers and not social scientists working on EU law. The aim was to avoid a juxtaposition of disciplinary perspectives and to allow lawyers to reflect on their own methodological practices. It should now be confronted with the work of scholars who study EU law and EU integration from the perspective of other disciplines.

The controversies over methods in EU law are not over. The texts collected in this symposium contain open methodological proposals that need to be challenged and developed, rather than fixed and predetermined methodological recipes. The debate is ongoing and many more voices need to be heard. The seminar series continues this year (see the programme here).