Edited by Mark Dawson, Bruno De Witte and Elise Muir
Chapter 2: The political face of judicial activism: Europe’s law-politics imbalance
The analysis of whether there is something like ‘judicial activism’ in the EU or not rests on particular assumptions and starting positions. There is an individual or liberal position which has seen the strong role of the Courts in forwarding EU integration as politically empowering. If one reads the seminal judgments of the ECJ in Van Gend & Loos and Costa through the lenses of people like Frederico Mancini, the effect of the ECJ’s jurisprudence has been ‘to take Community law out of the hands of politicians and bureaucrats and give it to the people’. By allowing individuals to enforce rights under EU law directly, the EU Courts are not engaged in ‘activism’; rather, they are doing precisely the same as judges the world over: giving individuals access to the law. In doing so, politics is not reduced, instead new political pathways are opened up. Individuals are permitted to use rights under EU law to politically contest and de-stabilize national policies that exclude and under-count outsiders.
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