The Institutionalization of European Administrative Space

Martin Shapiro

CCOP Working Paper #2000-09
January, 2000

Not so very long ago it was impossible to interest students of comparative politics in law and courts which they thought had little or nothing to do with the politics of the nations they studied. Simple propositions that were truisms among law and courts specialists, such as that litigation was an alternative form of interest group lobbying, were foreign to comparativists who largely stuck to the standard layman's view that courts are or ought to be "independent" and "neutral" that is separated from politics and policy making. Americanists, of course, knew better, but that generally was attributed to the peculiar place of the U.S. Supreme Court's power of constitutional judicial review in American politics. Three changes in the real world have now begun to persuade comparativists of the political functions of law and courts. One is the spread of successful constitutional judicial review to a large number of Western European states. If judges declaring laws unconstitutional is political in the U. S. it probably is in France, Germany, Italy and Spain too. The second is the political evolution - or lack of it - in the former Soviet Union and its former satellites. It has become far too evident that success or failure in building a working court system and rule of law is a crucial element in national political and economic development. The third new political phenomenon is the European Union. As American specialists in comparative politics began to study the E. U., it became difficult for them to ignore the crucial role of the European Court of Justice in its development and the degree to which the E. U. itself was a structure of laws which owed its existence and evolution to innovations in law. Moreover, as these three great changes were taking place, the Gods of Behaviorism were marching along to the discovery of the "new institutionalism" in which formal rules were again seen as politically significant.