Establishing Law in Context

To fully understand the Law in Context (LIC) movement, it is essential to consider it in context; furthermore, despite changes in context, LIC remains pertinent today. Law in Context was a revolution in EU law studies. It began in the 1980s and ‘90s and its effects continue today. This blogpost sketches selected basic landmarks. Inevitably it is a personal perspective, because if the short history of LIC shows anything, it is that there are almost as many views of ‘context’ as there are LIC scholars.

The intellectual forerunners of LIC came from American legal realism, critical legal studies, other disciplines such as anthropology, and comparative law. William Twining, Laura Nader, Harry Arthurs, Sally Falk Moore, the Frankfurt School, and Mauro Cappelletti figured among the founders. Stemming from these roots, modern LIC was based largely on research at the European University Institute (EUI) in Florence. This first generation was led by scholars associated with the EUI Law Department, including (to mention only a few, and in alphabetical order) Mauro Cappelletti, Renaud Dehousse, Christian Joerges, Karl-Heinz Ladeur, Hans Micklitz, Francis Snyder, Gunther Teubner and Joseph Weiler. They and their colleagues (such as Carol Harlow at the LSE, Roger Cotterrell at QMUL, Rick Abel at UCLA, David Trubek at Wisconsin and Tom Heller at Stanford), and their students, who are now a new generation of law teachers, initiated and shaped contemporary LIC. Their teaching and scholarship dramatically enlarged the methods and theoretical perspectives in EU legal studies.

All believed that law could be understood best by placing legal institutions, rules, dispute settlement processes, and legal professionals in their social, economic, political and cultural contexts. This perspective complemented, and sometimes supplemented the positive law ‘black-letter’ approach that had a virtual monopoly in law teaching at the time and that, for most law teachers, probably remains dominant because of the largely professional training approach used in many law schools. LIC created a real transnational academic community, despite obstacles of language, geography, and academic cultures.¹⁾ It is tempting to recall the international political and economic context. The so-called ‘long boom’ of Western capitalism provided a fertile field for academic cooperation, long before the EU and EU legal scholarship fragmented with the EU and international fiscal crises and increasing international conflicts.

Each version of LIC may have had different intellectual antecedents. Forgive me if I rely here mainly on my own personal experience. I studied political science, law, especially comparative law, and anthropology, especially anthropological economics, before becoming immersed in EU law. In retrospect, a major influence on my teaching and research in EU law has been PhD anthropological fieldwork in West Africa. This may seem surprising, and anthropology has undergone a sea change in the past decades, but for me anthropology underscored the importance of empirical research, cultural relativism, the ultimately vain but nonetheless worthwhile struggle to combine emic and etic views of social action, and historical understanding of local knowledge and power.

The European Law Journal: Review of European Law in Context (the ELJ) began when Blackwell Publishers (now Wiley-Blackwell) in Oxford approached me in the early ‘90s with an offer to establish a new law journal, similar in orientation to the special issue on ‘New Perspectives on European Law’ that I edited for the LSE-based Modern Law Review (53,5, September 1990). The first issue of the ELJ was published in July 1995. Due to problems with Wiley Publishers, now responsible for a similarly named journal, all editors of the original ELJ resigned and established a new journal, with a different publisher. The current legacy of the ELJ is European Law Open (ELO), a new online journal published by Cambridge University Press.

The ELJ initially incarnated the ‘law in context’ approach to EU law. The ELJ differed profoundly from many national and international law journals at the time (and perhaps today). First, it published articles on their merits as established by peer review, and without regard to personal contacts or the nationality of authors; initially at least, the ELJ was able to translate all articles into English. Second, it evaluated submitted manuscripts according to anonymous double-blind peer-review, in which reviewers did not know the names of authors, and vice versa. Third, the ELJ made a serious effort to attract manuscripts in languages other than English. Articles submitted for example in French, German, Italian, or Spanish were translated into English. Fourth, it sought articles from a variety of intellectual communities, not limited to those professionals working for the EU²⁾, and not limited to Europe or the United States.

Any continuing revolution, however diluted compared to its outset, requires institutional support. LIC was made possible by support from many universities. Thanks are due to a great many universities, which gave space for scholars to pursue a new vision of EU law. A few are recalled here. From a personal standpoint, the most significant were Warwick University, University College London, the European University Institute and London School of Economics. Other institutions that supported the ELJ were universities and grandes écoles in France (Aix-Marseille, ESSCA, HEC), Germany (Humboldt), Ireland (UCD) and China (Peking University) and governmental institutions, such as Ville d’Aix-en-Provence, the Region of Provence-Alpes-Cote d’Azur and the European Commission. They sponsored and help pay for the annual International Workshop for Young Scholars (WISH, also known as the Rencontre international des jeunes chercheurs, RIJC), which enabled the ELJ, together with local university partners, to organize an international workshop for the best young scholars in selected fields of EU law (enlargement, immigration, food safety, evolution of the European courts, for example) to present their work and possibly have it published in the ELJ and in a book series by Editions Bruylant in Brussels.

For a new journal, a tolerant and supportive publisher is essential. The ELJ benefitted from invaluable, enthusiastic help from Blackwell Publishers in Oxford and Editions Bruylant in Brussels. In partnership with the Centre d’Etudes et de Recherches Communautaires (CERIC) at Aix-Marseille University, Editions Bruylant published selected WISH/RIJC papers in a special series called Travaux du CERIC,

Innovative individual scholarship and publications, academic cooperation within research groups, networks and university departments, institutional support such as universities, research institutes and a supportive publisher, and good luck – all these elements came together in the creation of the ELJ and its rise to one of the leading law journals in the field internationally. Since its establishment the ELJ has been fortunate enough to participate actively in the most important debates about EU law during the last few decades. It published leading articles on EU constitutional and administrative law, the legal aspects of economic integration in highly topical fields such as telecoms, human rights, relations between the EU and China, the role of expert committees in EU governance, changing relations in international trade, and impact of the EU fiscal crisis. The ELJ has also been able to conjoin highly theoretical articles with empirical studies of law-in-action and with topical policy-oriented research, so it has been able to find a readership both among academic community and among EU civil servants and policy-makers.

But a single journal, however important, cannot explain or exhaust the international impact of the ‘law-in-context’ movement. The themes of legal scholarship have drastically expanded in comparison to mainly rule-oriented scholarship in the past, including doctrinal analysis of judicial decisions. Other journals that previously published mainly positive-law articles have responded to the ELJ challenge and to the diversity of submitted manuscripts and expanded their offering. They all cooperate and compete for innovative legal scholarship in today’s world, which presents new challenges and opportunities for LIC teaching and research that is more necessary than ever before.