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Journal ArticleDOI

Perpetual Momentum: Directed and Unconstrained?

01 Jan 2012-Journal of European Public Policy (Routledge)-Vol. 19, Iss: 1, pp 127-139
TL;DR: The perpetual momentum of "integration through law" is driven by the substantive dynamics of legal doctrines extending the protection of individual interests and by procedural conditions facilitating the use of European law to challenge the institutional regimes of EU member states as mentioned in this paper.
Abstract: At the most general level, the perpetual momentum of ‘integration through law’ is driven by the substantive dynamics of legal doctrines extending the protection of individual interests and by procedural conditions facilitating the use of European law to challenge the institutional regimes of EU member states. Given the supremacy and direct effect of European law, and the decision rules of EU policy making, this momentum could not be halted through political or judicial intervention.
Citations
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Book ChapterDOI
TL;DR: The relationship between the EU and its member states is much more ambivalent as mentioned in this paper, where the political and legal bases of legitimate authority at the national level dominate those at the regional and local levels.
Abstract: European integration has created a multilevel polity in which governing powers are exercised at the European, national, subnational and local levels. But whereas in EU member states there is generally a clear hierarchical relationship in which the political and legal bases of legitimate authority at the national level dominate those at the regional and local levels, the relationship between the EU and its member states is much more ambivalent.

91 citations


Cites background from "Perpetual Momentum: Directed and Un..."

  • ...Moreover, the ECJ has also begun to protect non-economic human rights (Weiler 1999), and it is now dynamically extending their reach (Wollenschläger 2007; Scharpf 2010, 2012)....

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Journal ArticleDOI
TL;DR: In this paper, the authors argue that experimentalist forms of organization in making regulatory rules, organizing social services, and articulating constitutional norms arise and diffuse as the problem that the actors and the state face shifts from ignorance to uncertainty.
Abstract: Our central claim in this rejoinder is that experimentalist forms of organization in making regulatory rules, organizing social services, and articulating constitutional norms arise and diffuse as the problem that the actors and the state face shifts from ignorance to uncertainty. We argue that this has consequences for forms of accountability and for the conception and organization of democracy and constitutionalism. The EU, founded by diverse states in a period of continuing uncertainty, intensified by growing interdependence, proves to be a natural laboratory for observing urgent efforts to adjust to this new situation, and the symposium focuses on developments there. The symposium has brought us to see that there is more common ground in these debates than prior exchanges may have suggested. We therefore emphasize convergence on large points, while underscoring and, we hope, clarifying persistent differences, with the aim of encouraging the joint exploration of them already underway, in part explicitly, in part implicitly.

82 citations


Cites background from "Perpetual Momentum: Directed and Un..."

  • ...…fixation on market-making, Scharpf sees them as irremediably dedicated to the furtherance of an individualistic liberalism at the expense of necessarily particular republican ideas of collective freedom and justice that can only be realized within national welfare states (Scharpf 2010, 2012)....

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Journal ArticleDOI
TL;DR: The European Court of Justice (ECJ) has played an indispensible role as a motor of European integration as discussed by the authors, in judgments addressing the balance between national and supranational authority.
Abstract: The European Court of Justice (ECJ)1 has played an indispensible role as a motor of European integration. In judgments addressing the balance between national and supranational authority, the Europ...

66 citations


Cites background from "Perpetual Momentum: Directed and Un..."

  • ...And as Fritz Scharpf (2012) emphasizes in his conclusion to this collection, the dominant role of the ECJ results in a skewed constitutional balance....

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  • ...We would also like to thank those participants of the November 2010 workshop in Bremen that acted as discussants of the different papers: Philipp Genschel; Fritz Scharpf; Martin Höpner; Christian Joerges; Michael Blauberger; and Arndt Wonka....

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  • ...Our special thanks go to Fritz Scharpf for agreeing to take over the conclusion!...

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Journal ArticleDOI
TL;DR: Recent jurisprudence of the European Court of Justice (ECJ) marks a striking shift towards a more restrictive interpretation of EU citizens' rights as discussed by the authors, which is not only highly releva...
Abstract: Recent jurisprudence of the European Court of Justice (ECJ) marks a striking shift towards a more restrictive interpretation of EU citizens’ rights. The Court's turnaround is not only highly releva...

63 citations


Cites background from "Perpetual Momentum: Directed and Un..."

  • ...The Court is not only regarded as largely ‘unconstrained’, but also seen as ‘directed’ towards more integration (Scharpf 2012)....

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Journal ArticleDOI
TL;DR: The authors analyzes the political impact of the European Court of Justice's (ECJ) case law concerning the free movement of EU citizens and their cross-border access to social benefits and concludes that EU citizenship law, while promising to build the union from below on the basis of equal legal entitlements, may, in fact, risk rousing further nationalism and decrease solidarity across the union.
Abstract: This article analyzes the political impact of the European Court of Justice’s (ECJ) case law concerning the free movement of EU citizens and their cross-border access to social benefits. Public debates about ‘welfare migration’ or ‘social tourism’ often fluctuate between populist hysteria and outright denial, but they obscure the real political and legal issues at stake: that ECJ jurisprudence incrementally broadens EU citizens’ opportunities to claim social benefits abroad while narrowing member states’ scope to regulate and restrict access to national welfare systems. We argue that legal uncertainty challenges national administrations in terms of workload and rule-of-law standards, while domestic legislative reforms increasingly shift the burden of legal uncertainty to EU migrants by raising evidentiary requirements and threatening economically inactive EU citizens with expulsion. We illustrate this argument first with a brief overview of the EU’s legal framework, highlighting the ambiguity of core concepts from the Court’s case law, and then with empirical evidence from the UK, Germany and Austria, analyzing similar domestic responses to the ECJ’s jurisprudence. We conclude that EU citizenship law, while promising to build the union from below on the basis of equal legal entitlements, may, in fact, risk rousing further nationalism and decrease solidarity across the union.

59 citations


Cites background from "Perpetual Momentum: Directed and Un..."

  • ...But other scholars claim that this expansion of individual rights undermines the functioning of national welfare systems and thereby reinforces, rather than compensates for, the EU’s alleged liberal bias towards individual market freedoms (Höpner and Schäfer, 2012: 448; Scharpf, 2012: 132)....

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References
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Book
01 Jan 1977
TL;DR: The Model of Rules I 3. The Model of rules II 4. Hard Cases 5. Constitutional Cases 6. Taking Rights Seriously 8. Civil Disobedience 9. Reverse Discrimination 10. Liberty and Moralism 11.Liberty and Liberalism 12. What Rights Do We Have? 13. Can Rights be Controversial? Appendix: A Reply to Critics Index as mentioned in this paper
Abstract: Introduction 1. Jurisprudence 2. The Model of Rules I 3. The Model of Rules II 4. Hard Cases 5. Constitutional Cases 6. Justice and Rights 7. Taking Rights Seriously 8. Civil Disobedience 9. Reverse Discrimination 10. Liberty and Moralism 11. Liberty and Liberalism 12. What Rights Do We Have? 13. Can Rights be Controversial? Appendix: A Reply to Critics Index

3,441 citations

Book
01 Jan 1962
TL;DR: In this article, the power of the Supreme Court and its relationship with other political institutions is examined, and specific cases which illustrate the relationship between the court and other institutions are discussed.
Abstract: Examines the power of the Supreme Court and cites specific cases which illustrate its relationship with other political institutions

697 citations


"Perpetual Momentum: Directed and Un..." refers background in this paper

  • ...…of law defined by the national court, it will not consider procedural criteria of ‘standing’, ‘ripeness’ and other requirements of a genuine ‘case and controversy’ – which the US Supreme Court employs to avoid decisions on insufficiently clarified constitutional issues (Bickel 1962; Scharpf 1966)....

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Book
06 Sep 2001
TL;DR: The Making of an International Rule of Law in Europe as mentioned in this paper and the process of legal integration in Europe is discussed in detail in Section 5.2.1.1 and 2.3.
Abstract: 1. The Making of an International Rule of Law in Europe 2. National Judicial Interests and the Process of Legal Integration in Europe 3. German Judicial Acceptance of European Law Supremacy 4. French Judicial Acceptance of European Law Supremacy 5. Winning Political Support: Why Did National Governments Accept a Judicial Revolution that Transferred Away National Sovereignty? 6. The Transformation of the European Legal System and the Rule of Law in Europe

481 citations


"Perpetual Momentum: Directed and Un..." refers background in this paper

  • ...…the reluctance of Scandinavian judges to challenge their own parliaments is not generally shared by national courts – which often seem eager to participate in the powers of judicial review which otherwise would be reserved to national constitutional or high courts (Alter 2001; Stone Sweet 2004)....

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Journal ArticleDOI
TL;DR: In this article, the authors argue that integration through law does have a liberalizing and deregulatory impact on the socioeconomic regimes of European Union member states, but this effect is generally compatible with the status quo in liberal market economies, but it tends to undermine the institutions and policy legacies of Continental and Scandinavian social market economies.
Abstract: Judge-made law has played a crucial role in the process of European integration. In the vertical dimension, it has greatly reduced the range of autonomous policy choices in the member states, and it has helped to expand the reach of European competences. At the same time, however, ‘integration through law’ does have a liberalizing and deregulatory impact on the socio-economic regimes of European Union member states. This effect is generally compatible with the status quo in liberal market economies, but it tends to undermine the institutions and policy legacies of Continental and Scandinavian social market economies. Given the high consensus requirements of European legislation, this structural asymmetry cannot be corrected through political action at the European level.

435 citations


"Perpetual Momentum: Directed and Un..." refers background in this paper

  • ...In other words, European ‘social market economies’ are being transformed into liberal market economies (Scharpf 2010) primarily by the Court’s extension of the ‘non-restriction’ principle....

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