EU law scholarship is experiencing an empirical turn. Although early examples of research exploring legal aspects of European integration through empirical methods can be traced as far back as the late 1980s, it is the past decade that has brought about a veritable explosion of activity in this area. Scholars have published important quantitative and qualitative studies, relevant thematic networks have emerged, and large-scale projects with an empirical focus have received funding.Footnote 1 Perhaps unsurprisingly, the increasing popularity of empirical legal studies (ELS) in the EU has gone hand in hand with growing resistance against the new movement. ELS has been criticised for failing to understand the unique nature of (European) law, thus producing insights that have ultimately no relevance for its study.Footnote 2
The present chapter seeks to interrogate this proposition by asking a simple, yet fundamental question: does empirical legal research add anything to our understanding of EU law and, if so, what? Debates about the merits and demerits of ELS are as old as the field itself. US scholars have conducted empirical research on law-related topics for over a centuryFootnote 3 and have had fierce exchanges about the promise and pitfalls of ELS.Footnote 4 Similar discussions have emerged whenever empirical methods entered new jurisdictions or areas of law.Footnote 5 Typically, defenders of ELS stress the virtues of falsifiability, reproducibility, generalisability, and similar traits of empirical research which can benefit the analysis of legal phenomena. Critics point to the reductionism inherent to ELS, its excessive emphasis on objectivity and scientific rigour, as well as the methodological flaws marring individual studies.
Even though a significant body of empirical research has surfaced in EU law, there has, so far, only been limited reflection on the role and legitimacy of ELS.Footnote 6 It may be tempting to fill this gap by recycling the arguments exchanged in prior debates outside the EU context, but there is good reason to engage in a bespoke contemplation of the issue. Despite certain parallels, the different iterations of empirical legal scholarship have varied across time and space. The initial realist research in the US differs from the later law-and-society movement which, in turn, has little to do with the modern version of ELS that has emerged in the 2000s.Footnote 7 Similarly, the empirical legal research landscape in Europe appears to begin to deviate from its North American counterpart, focusing on different problems and employing different approaches.Footnote 8 Against this background, it is warranted to examine empirical legal research on EU law as a distinct, not detached, development.
Drawing on a number of examples from the European empirical legal literature, I will argue that ELS makes a three-fold contribution to the study of EU law: first, it allows us to investigate old questions which we have always been asking, but with different – often better suited – tools; second, it adds important new questions to the research agenda that previously escaped scholarly attention; third, it extends the concept of EU law, making it richer and more inclusive. This intellectual acquis is its strength but also makes ELS susceptible to two lines of critique. Some may see it as going too far, methodologically and substantively, from existing legal scholarship and discourse, others as not going far enough.
1.1 Empirical Legal Studies in the EU
What is ELS? At its most basic, it constitutes a combination of method (empirical) and object (law). While some ambiguities remain, there is an emerging consensus on both components of this definition. ‘Empirical’ is generally understood to include any evidence about the world based on observation or experience.Footnote 9 Although there are voices who seek to limit the range of acceptable evidence to that of quantitative nature,Footnote 10 the more common – and convincing – position is to include qualitative data.Footnote 11 Less thought has so far been given to the ‘legal’ dimension of ELS. The notion is usually interpreted widely, even though explicit definitions of its scope remain rare. The statute of the recently founded European Society for Empirical Legal Studies makes an attempt in this direction. It refers to any study that tries to ‘describe and explain the context within which the law is applied, the application itself of the law, and the impact which the application of laws and regulations has on this context’, underlining that ‘the questions of how to determine the characteristics and the application of valid law (along with the societal implications of this process) [are] two equally valid and interesting research questions’.Footnote 12 The European Journal of Empirical Legal Studies embraces a similarly broad definition.Footnote 13 In the EU context, any reference to law relates to the law or, more generally, legal order of the European Union and its Member States.
A significant body of scholarship on EU law fulfills these elementary criteria. But one would err in thinking of that body as a uniform whole. Instead, EU-focused ELS shows signs of variation in relation to both method and object, which poses intriguing questions about the state and boundaries of the field.
Let me start with the former. As already noted, ELS is, in theory, open to any empirical method. However, in practice, often quantitative approaches dominate. This is true of the current wave of ELS in the US, as well as more recent offshoots in countries such as Germany and Israel or substantive areas such as private and comparative constitutional law. In EU law, too, we see many – probably the majority of – ELS studies employing quantitative tools. But there is a relatively high(er) number of qualitative research as well. Interviews constitute a particularly popular tool which has, inter alia, been used to investigate the behaviour of Member State judges,Footnote 14 the implementation of European environmental standards,Footnote 15 and the application of EU rules on classified information.Footnote 16 Systematic content analysis, which combines qualitative and quantitative insights, is likewise gaining traction as a means of analysing court rulings, antitrust decisions, and other types of legal text.Footnote 17
There is also variation as to the degree of empiricism applied. Different projects embrace the empirical method to different extents. Despite the growth of ELS in EU law, at present a large share of research continues to resort to fairly simple methodological tools. In many publications the sole empirical information featured is frequencies (e.g., how many times the Court applies a certain doctrine or the Commission resorts to a certain provision) or other descriptive statistics (e.g., means or shares). There is a more than fleeting resemblance to the empirical scholarship produced by the pioneers of legal realism. Yet, we are, likewise, seeing a rapidly growing amount of empirically advanced work. Large-N studies, ambitious interview projects, and sophisticated data analyses are becoming increasingly widespread. More innovative methods that have entered other social sciences or jurisdictions outside of the EU, such as experimental research designsFootnote 18 and machine learning,Footnote 19 remain scare, though.
In addition to method, we see variation in relation to the object of study: EU law. This is linked to the question as to what counts as ‘legal’ for the purposes of empirical legal research. Some work rather evidently falls into this category. Think, for instance, of studies examining what role non-economic interests play in decisions on Article 101 TFEU,Footnote 20 how often national supreme courts cite foreign authorities,Footnote 21 or to what extent online traders comply with EU consumer law.Footnote 22 All of these are directly related to the foundational elements of a legal system: rules, judges, statutes. Which is not to say that all classical sources of law are equally well represented in ELS scholarship; the number of projects on litigation, for instance, eclipses those concerning legislation.Footnote 23 But, without much doubt, each of them constitutes an equally valid target of empirical enquiry.
Ambiguities may start to arise once our focus shifts ‘outward beyond the legal system’s institutional core or downward from the legal system’s intellectual peaks’.Footnote 24 Consider, to name but one example, research on trilogues. Given their enormous practical significance (they affect around 90 per cent of EU legislation) and constitutional sensitivity (they potentially collide with the principle of democracy), trilogues have attracted a great deal of academic interest over the past years.Footnote 25 Scholars have tried to understand the reasons underlying and factors determining the success of the process. A particular focus has been put on the internal perspectives of politicians, civil servants, and other actors participating in the negotiations. How do they behave during trilogues? What motivates their decisions? Which constraints are they under? The resulting scholarship has considerably advanced our understanding of European law-making. There is no doubt that it is empirical in nature, with interviews, quantitative evidence, and other types of data underpinning the findings. Whether it also constitutes legal research may, by contrast, be less evident. On the one hand, there is the substantive proximity to EU legislation and Court of Justice of the European Union (CJEU) case law, or what has just been called the foundational elements of the European legal order.Footnote 26 On the other, the work does not examine archetypical legal actors or sources (informal decisions made by subordinate decision-makers) and does not, at least not primarily, seek to interact with legal debates.Footnote 27
The purpose of this reflection is to illustrate the diversity of topics and approaches that are, or could be, captured under the banner of ELS. The empirical legal movement in Europe has rightly been committed to methodological and substantive inclusivity. This inclusivity means that the scholarship it produces touches partly on core aspects of EU law and legal discourse, but is also concerned partly with their penumbra.Footnote 28 One might, against this backdrop, wonder about where to draw the boundaries of ELS and whether it is even worth trying to draw them. What may, however, be a more rewarding and ultimately more relevant endeavour is to look in the opposite direction: to explore how ELS has expanded the boundaries of EU law and legal discourse.
1.2 Three Functions
The varied nature of empirical legal research has allowed it to make a three-fold contribution to EU legal scholarship. The contribution extends to the way in which we study EU law (methodological), which aspects of it we study (theoretical), and what we consider to fall within the field’s scope (conceptual).
1.2.1 Asking Old Questions about EU Law
A significant part of European ELS focuses on examining questions which have always pre-occupied EU lawyers, but employs empirical methods to answer them. This includes a vast array of topics ranging from the use of specific doctrines, to the development of case law in certain areas, to other phenomena related to adjudication and law-making. What typically motivates scholars here is a combination of two interrelated objectives: generating systematic (through quantitative means) or contextual (through qualitative means) knowledge on issues that were so far only partially understood, and using that knowledge to demonstrate that some conventional wisdoms about EU law might be false.
The literature on precedents and legal reasoning provides a good example. Both the grand arrêts of the CJEU and its methods of interpretation have, since the beginning, sparked great interest among academic observers. The mixed nature of EU law, which combines aspects of the civil law and common law traditions, has raised questions about the effect of CJEU rulings and the existence of a system of precedents.Footnote 29 Historically, legal scholars would study these issues by looking at individual high-profile judgments and draw – often contradictory – conclusions about their meaning as well as relative importance. This generated a set of beliefs around which rulings have been leading or influential in the establishing of the EU legal order and, relatedly, which of them hold precedential value, in the sense of creating legal principles that are employed to resolve future disputes.Footnote 30 Yet, these beliefs remained unverified.
A number of ELS researchers, including Derlén, Lindholm, Šadl, and Panagis, decided to investigate the matter by examining citation patterns in the Court of Justice’s jurisprudence.Footnote 31 Borrowing from the network analysis toolkit, they studied how often the Court cites which judgments, measuring their relative importance and influence on the case law over time. Their findings show that there are, indeed, rulings to which the Court resorts more frequently than others and which can, therefore, be seen as having precedential value. They also demonstrate that the Court rarely cites some judgments considered to be ‘classics’, while frequently citing others which EU lawyers would consider less important. Bosman is referenced more frequently than Cassis de Dijon, PreussenElektra considerably outperforms Van Gend en Loos.
This stream of scholarship has made an empirical contribution to the debate by measuring which judgments have a reasonable claim to influence in the Court’s case law. However, its most significant contribution may lie elsewhere. It has forced the field to reflect harder on the question as to what constitutes a precedential or leading case. Is the importance of a ruling measured by the number of times it is referenced in other rulings (or opinions of Advocates General, or Google PageRank)? Can a judgment have landmark status although it is cited only infrequently? Can it be highly impactful during certain periods and insignificant during others? Each option embodies a different understanding and focuses on a different dimension of importance: practical, symbolic, temporal.Footnote 32 Their juxtaposition illustrates that sometimes the truly meaningful insights of empirical legal research need not, or not exclusively, regard the empirical results produced, but the theoretical and conceptual work that takes place before data analysis begins.
Another example is the research on judicial deference. It has been a longstanding source of concern to legal scholars, as well as political commentators, that the Court of Justice shows insufficient deference to the Member States. This is often tied to the charge of judicial activism. The CJEU is accused of going beyond the legitimate role of a court and expanding its powers at the detriment of national authorities, as evidenced by the high standards of scrutiny it applies and the growing number of domestic laws it quashes. Already in the 1970s, Michel Debré complained that the European judges suffered from ‘pathological megalomania’ – and he has not remained the only one to resort to such drastic words.Footnote 33 The foundational credo of both Eurosceptics and enthusiasts, inside and outside of academia, appears to be that the Court of Justice is activist.Footnote 34 Yet, is it actually? Does it constantly expand its powers? Is it engaging in ever-stricter forms of judicial review? A look at some of the best-known judgments on internal market law would suggest the answer is in the positive. Think of Dassonville, Bosman, Centros, and Viking, which all seem to point this way.Footnote 35
In Europe’s Passive Virtues, I tried to get a more comprehensive picture of the CJEU’s behaviour by looking at the development of free movement case law since the 1970s.Footnote 36 I examined the frequency with and circumstances under which the Court grants national authorities deference, one symptom of judicial restraint and, in this sense, the opposite of activism. The findings suggest that not only judicial deference has always been a relevant part of the Court’s jurisprudence, but that it has become more relevant over time. This casts doubt on the activism narrative. Rather than intensifying their scrutiny of Member State action, the European justices are willing to delegate regulatory decisions to national authorities to a greater extent. The results also show that the legal principles which are, according to the Court, meant to guide the application of deference capture the actual decision-making practice only poorly. Similar studies containing more data and focusing on other areas of internal market law have since confirmed the findings, while probing further into the factors that determine the use of deferenceFootnote 37 and critically interrogating its role in expanding EU law.Footnote 38
Some may wonder whether ELS scholars, in these and similar projects, are really studying the same questions as traditional legal scholars. It may seem that there is a categorical difference between the aims of both groups: whereas legal scholars are interested in finding out what the law is, empirical legal scholars are interested in its causes, effects, and application. I shall say more about this distinction in the final section, which is not as stark as it may initially appear. Suffice it to note at this point that it is, indeed, true that the objective of empirical research such as the above is often not to elucidate the meaning of a legal rule from an internal perspective, akin to what a judge would do when interpreting it in a dispute they must solve. Gathering data on which CJEU rulings are most frequently cited cannot settle the question whether, as a matter of law, there is a formal system of precedent. Demonstrating that Member States are or are not granted deference in certain scenarios cannot settle the question when, as a matter of law, they ought to be.
And, still, it would be hard to deny the relevance of these empirical insights for legal research, even if defined in the above narrow way. One need not embrace extreme rule scepticism to accept that there is a world beyond the official statements made in constitutions, statutes, and judgments – and that this world matters for those engaged in the study of law. If a CJEU ruling makes a doctrinal change that is never picked up in subsequent case law or systematically applies a principle in a manner contradicting its own standards, this is, of course, something that a legal scholar must reflect on. Perhaps more importantly, it is something that they have always reflected on. Limiting legal scholarship, even of the traditional kind, to mere rule exegesis would fail to do justice to its richness, especially, but not only, in the EU where theoretical and contextual approaches have been prominent from early on.Footnote 39 EU lawyers have made claims about the prevalence of judicial activism, the impact of CJEU judgments on subsequent case law, as well as a myriad of other – empirical – phenomena. In these and many other ways, empirical questions have been on the mind of EU law scholars for long. They just have not been answered with the appropriate tools.
1.2.2 Asking New Questions about EU Law
Whereas the first category of ELS scholarship expands how research on EU law is conducted, the second category expands what research is conducted. When we embrace new research methods, we do not only gain a set of hitherto unavailable tools through which we can examine the phenomena we had previously studied. We also start adjusting our expectations as to the questions we could – and should – pose. In this way, methods can have a direct and profound effect on theorising. Merton recognised this already in the 1940s, highlighting that ‘empirical research goes far beyond the passive role of verifying and testing theory … it initiates, it reformulates, it deflects, and it clarifies theory’.Footnote 40 EU law scholarship exemplifies that dynamic well. Empirical methods have led scholars to investigate topics which had not been on the research agenda before, through theoretical frameworks adopted from other disciplines.
Research on the autonomy of the CJEU from, and its interaction with, the multi-level political processes in Europe has been one line of enquiry which has particularly profited from this cross-pollination. Does the Court respond to threats of legislative override or non-compliance? To what extent is its jurisprudence influenced by other EU and Member State institutions? These are questions which, despite their relevance for European law, were largely absent from legal scholarship. Their origins lie in writings of scholars of political science and international relations in the 1990s, many of whom were concerned with theories of European integration.Footnote 41 The ability of the EU’s apex court to make and expand law independently of, or even against, the preferences of national governments and European law-makers was seen as a litmus test for the two dominating accounts of integration, neofunctionalism and intergovernmentalism. Through descriptive heuristics such as ‘law as a mask’ and ‘shield’, which have since become staples in the field, authors made the first serious attempts to understand the interplay of legal and political factors in EU adjudication.
The topic was subsequently picked up by scholars like Carrubba and Gabel and largely reframed as an issue of judicial behaviour, thus acquiring a more immediate significance for EU lawyers.Footnote 42 Gathering data on the positions expressed in EU legal proceedings, Carrubba and Gabel showed that Member State submissions have a systematic and sizeable impact on the outcomes of CJEU rulings. Later studies by Larsson and Naurin corroborated the results and delved deeper into the mechanisms underlying judicial responses to political uncertainty.Footnote 43 They concluded that the Court of Justice incorporates the views expressed by national governments for strategic reasons, viewing them as proxies for the adverse reactions which its judgments could trigger. These are insights which are crucial for understanding what shape CJEU judgments end up taking.
A second example of the type of questions that ELS has brought into EU law scholarship concerns the research on national courts. European law is, to a vast extent, applied by national, not European, judges – a result of the Union’s singular brand of judicial federalism.Footnote 44 The two judiciaries are connected through the preliminary reference mechanism, which allows national courts to reach out to European courts when questions concerning the interpretation of EU rules arise. The ingenuity of the preliminary reference procedure as a forum for engagement with European law and, thus, a vehicle for its enforcement and expansion was quickly understood by EU legal scholars. Significant effort was put into analysing key rulings stemming from the procedure, identifying failures to use it by domestic apex courts, and commenting on specific legal requirements concerning its scope (eligible courts, acte clair, etc.). What was largely missed, however, was that preliminary references operated unevenly across the EU’s territory. Whereas courts in some cities and regions of individual Member States repeatedly referred questions to Luxembourg, others never did.
Inspired, again, by debates on European integration, scholars mainly affiliated with political science departments began to look at which courts submitted preliminary references, how many references they submitted and why, and what explained the differences in referral rates across Member States. A seminal study by Golub argued that UK courts did not refer nearly as frequently as was to be expected, thus questioning the idea of the universal popularity of judicial co-operation in the European communities.Footnote 45 Later work by Stone Sweet and Brunell suggested that levels of trade may explain differences in the levels of referrals in individual Member States.Footnote 46 What followed was one of the most extensive streams of research ever produced on EU law. Scholars examined the impact of variables such as legal culture,Footnote 47 structural factors,Footnote 48 geographic aspects,Footnote 49 as well as the trust of domestic judges in and their familiarity with EU law.Footnote 50 This collective endeavour substantially widened what we know about national courts, their influence on the European legal order, and thereby, the process of European integration through law.
1.2.3 Expanding the Concept of EU Law
Empirical legal research has had a third effect: it has broadened the conceptual boundaries of EU law. This is its least tangible but, at the same time, possibly most meaningful contribution. It concerns the question as to whom and what we consider to be a worthy object of inquiry and, more broadly, how far we understand European law to reach.
Research on non-institutional actors provides a good example. EU law scholarship traditionally focused on the key institutions of the European Union. This includes, above all, the Court of Justice. The Commission, Parliament, and Council have also sparked some, if more limited, academic interest in the legal community. ELS scholars with a background in sociology began to investigate the role of other – not formally recognised – actors. Vauchez is among those who initiated this line of scholarship. Inspired by Bourdieu’s theoretical apparatus, he collected a variety of ethnographic, bibliographical, and qualitative data on what he dubbed ‘Euro-lawyers’, a group including the barristers involved in bringing cases before the CJEU, the domestic civil servants implementing European rules, and the academics lobbying for certain legal positions. In his own words, his book Brokering Europe:
inserts living, acting people into what has so far tended to remain a disembodied narrative of reified actors (‘the Court’, ‘the Commission’) pursuing abstract goals and ex ante defined interests. Rather than contemplating the ‘cathedral’ of European law from the outside, this book goes inside the edifice and sheds light on the assembly of clerks on which the EU law controversies exercise a calling. Thus shifting the focus on real life and historically situated actors, the book seeks to identify how their legal and non-legal undertakings have been shaped and informed by their individual backgrounds, their social and professional socialization and their oft-interlocking networks within and outside the legal field.Footnote 51
Vauchez’s work draws our attention to the unsung heroes (or, if you are so inclined, villains) of EU law. Individuals and communities who were instrumental figures in the European integration process had a considerable influence on the court cases that were brought, the legal principles that ended up being established, and the acceptance of these principles in the Member States. There is an explicit connection with some classical questions of EU law: how did rulings like Van Gend en Loos and Costa/ENEL come about? Why were they accepted by national authorities? At the same time, there is a radical departure from its prior intellectual limitations. Actors outside the institutional centre of the legal system are investigated as pivotal characters in the story of EU law.Footnote 52
Scholarship on compliance provides another example in this context. One of the earliest strands of ELS in EU law, its aim is to examine whether, when, and why Member States abide by European rules. Significant effort has gone into determining the degree of and conditions for compliance. A first wave of research concentrated on what we may call ‘the law in the books’. Scholars, including a number of legal scholars, looked into the implementation of CJEU judgments by national courts. They found that domestic judges, by and large, complied diligently with European rulings, in spite of the much-publicised conflicts between the Court of Justice and national constitutional courts.Footnote 53 Similarly, the implementation of EU directives by national parliaments attracted academic interest, although, here, primarily within the political science community. The rates and speed at which directives were transposed at Member State level were studied across sectors, countries, and periods.Footnote 54 Overall, the research testified, again, to high levels of compliance, with substantial improvements over time.
Subsequent waves of compliance scholarship emphasised, in good realist tradition, the need to go beyond formal indicators and look at ‘the law in action’. Political scientists like Versluis, Börzel, and Conant examined to what extent domestic inspectorates, administrative agencies, and individual officials implemented European rules in their day-to-day operations, often finding striking differences between official records and street-level experiences.Footnote 55 A directive, for instance, could formally be transposed, but this did not necessarily mean that it was also applied as intended. There were numerous ways in which national authorities could ‘contain’Footnote 56 the enforcement and, ultimately, penetrative force of EU law. The shift from macro to micro, and abstract to concrete, has not just complicated the compliance story. It has broadened the field’s sensibilities as to what constitutes an effective application of EU law. Actors as well as places, stages, and forms of enforcement that had previously been disregarded begun to be considered as relevant for our comprehension of the functioning of the European legal order.
1.3 Too Radical or Not Radical Enough?
So does empirical legal research add something to our understanding of EU law? This chapter suggests that the answer is a clear yes. ELS has given scholars interested in EU law new methodological tools, enabling them to tackle research questions in which they are interested more effectively, while also expanding their theoretical and conceptual horizons. This is a significant contribution. What may, by contrast, be less clear is what to make of that contribution. The nature of ELS, somewhat paradoxically, opens it up to two lines of critique: that it is too radical and that it is not radical enough.
Let me start with the former. ELS has been portrayed as problematic or outright dangerous by EU law scholars, notably those with a doctrinal focus, echoing the pushback against employing empirical methods to study legal issues which had previously surfaced in other areas and jurisdictions.Footnote 57 The list of objections includes, first of all, the peril of reductionism. ELS, so it is frequently claimed, boils down complex legal phenomena into unduly simple data or, even worse, perverts law and doctrine by using it as a mere input variable. Second, and relatedly, it is argued that law and legal reasoning are unique, and that the empirical method is unable to capture this uniqueness. What it can capture is, in turn, irrelevant for law and legal reasoning. Finally, opponents have taken issue with the assumptions underpinning parts of empirical research, critiquing the antiquated scientism and belief in objectivity that often goes along with it.
Some of these objections are, indeed, warranted some of the time. In a field that, by definition, combines legal topics with social science methods, problems of translation can arise. Simplifying ever so slightly, political scientists occasionally do a poor job at conceptualising legal phenomena and overlook relevant doctrinal variables,Footnote 58 whereas legal scholars struggle with methodological hurdles such as data collection and analysis.Footnote 59 The belligerent rhetoric of ‘scientific’ empirical as opposed to ‘un-scientific’ doctrinal research which can, at times, be found in ELS work – an understandable but unnecessary justificatory tactic – adds to a sense of antagonism. Still, though valid, none of these criticisms detract from the legitimacy of ELS. If anything, they are a plea for better empirical legal research, and a better communication of that research. For, of course, it is possible to conceptualise legal phenomena adequately, consider the legally relevant factors, comply with accepted methodological standards, while explaining the limitations and uncertainties of the findings. In fact, the previous section has provided plenty of real-life examples of such research.
Overall, the conflict between ELS and doctrinal legal research may be less categorical than often thought. Critics of empirical legal scholarship are keen to emphasise the difference between law and fact, or ‘ought’ and ‘is’. Augsberg, for instance, posits that ‘cognition of facts will never lead to cognition of rules’.Footnote 60 In a similar vein, Hesselink observes that: ‘If one wants to know what the right answer is to a question of law then empirical research of whatever kind will simply not be helpful.’Footnote 61 Yet, the philosophical boundary between ‘ought’ and ‘is’ is no longer as hard as it used to be.Footnote 62 What is more, the idea of doctrine operating in complete isolation from empirics is an illusion. As noted above, many doctrinal publications make empirical claims, just typically without the necessary empirical grounding. The same goes for the courts and legislatures which they study.Footnote 63 Vice versa, many empirical insights have clear implications for the creation, application, and enforcement of law. All of this suggests that the world of law, including that of EU law, is receptive to, sometimes even reliant on, the world of empirics.Footnote 64
This does not mean all legal scholarship must become empirical.Footnote 65 There is, and forever will be, a central place for doctrinal work as a means for determining, systematising, and critiquing EU law. Nor does it mean that the relationship between empirical and doctrinal research is a one-way street, with only the former benefitting from the latter. There is ample room for co-operation, much of which remains underexplored. The impact of ELS on theorising in the legal literature was already mentioned; the reverse, of course, is equally true. There are plenty of things that EU lawyers care about – direct effect, mutual recognition, procedural rules, and so on – which traditionally were not but now increasingly are, or should be, on the radar of social scientists. Conceptualisation is another example. Formulating valid and useful concepts is a crucial step in every empirical study.Footnote 66 Legal scholars have, due to their extensive experience with defining complex notions such as judicial independence, trade barriers, or subsidiarity, a comparative advantage in this regard. Finally, and perhaps most obviously, law can matter on both sides of the equation (or qualitative equivalent). Doctrinal work can be key for making informed choices about dependent and independent variables, as well as interrogating the findings.
While critiques of empirical legal research on EU law being too radical, thus, appear overblown, we may want to consider the opposite possibility: that it is insufficiently radical. This might sound curious at first, but take the following passage from a Suchmann and Mertz piece in which the authors critically assess the latest generation of US-based ELS:
Rather than critiquing the role of legal doctrine (contra the ‘rule skepticism’ of the original Legal Realists), ELS sees doctrine as a source of empirical propositions to be tested. Rather than shifting the center of gravity from the legal academy to the disciplinary social sciences, ELS sees the disciplines as repositories of technical skills that can be imported into established legal endeavors. And rather than demanding that legal scholars engage more directly with the social world, ELS emphasizes the ease with which statistically skilled law professors can pluck low-hanging empirical fruit in the comfort of their campus offices. In each of these ways, ELS is less radical and less threatening to the legal establishment than many of its empiricist predecessors.Footnote 67
In the EU context, too, we may wonder whether ELS is as subversive as some hope – and others fear. In fact, we have even more reason to do so than our American counterparts. The problems already start with the requisite technical skills. Mayoral and Pavone have highlighted that empirical legal research is, methodologically, lagging behind the disciplinary social sciences.Footnote 68 The tools used by European ELS scholars are relatively simple and, for the most part, simpler than those to be seen in the US (even though a similar line of critique could be equally explored there). Many of the methodological advances, big and small, which have occurred elsewhere have not, as of yet, been properly digested.Footnote 69 Think credibility revolution, formal modelling, and so on.
More generally, the potential of EU-focused ELS for ‘threatening the legal establishment’ has, so far, been realised to a limited extent at best. The impact on theory – the academic dimension of the establishment – has remained modest. The theorising done by empirical legal scholars is often thin. Many empirical studies on EU law do not seek to fundamentally change the status quo or see themselves as forming part of a bigger research puzzle, but aim to test some hypotheses here and there. Those with a more in-depth theoretical focus tend to import paradigms from other fields or jurisdictions, particularly the US, and use the EU as a case study to test their validity, instead of drawing on it to engage in theory-building. To avoid a misunderstanding: it is not that European ELS has failed to make noteworthy theoretical contributions. It has debunked and qualified a number of foundational assumptions about EU law surrounding issues such as judicial empowerment,Footnote 70 rule enforcement,Footnote 71 and the relationship between negative and positive integration.Footnote 72 But, even recognising the incremental nature of academic research and the relatively slower pace of (resource-intensive) empirical research, there is room for growth.
The impact on practice – the judicial and political dimension of establishment – has been more limited still.Footnote 73 Despite the gradually rising role played by empirical evidence in front of the Court of Justice, ELS research on EU law is hardly ever picked up by its Advocates General. The situation at the national level appears to be similar. This, it should be stressed, is only partly due to reasons internal to that research and, to an important degree, a function of the continuous relative lack of training and interest in empirical methods among the judges and lawyers across Europe. Unlike in the US,Footnote 74 there have been few instances where empirical studies on EU law-related topics have made media headlines or prompted political change.Footnote 75
None of this is to suggest that the effect which ELS has had on EU law has not been profound. In fact, the purpose of the chapter was precisely to show how much the field has been transformed by empirical legal research. Yet, this transformation has had the flavour of evolution, not revolution – something which may be rooted in the relationship between ELS and traditional legal research in Europe. At least on the lawyers’ side, empirical legal work still unfolds in a mainly doctrinal landscape, which continues to be the principal force in EU law scholarship. This may nurture the temptation to cater to the characteristics of that landscape. Not in the sense of embracing its outlook on European law and integration, but in the sense of remaining connected to its research priorities and sensibilities. For empirical legal scholarship, this connection can be beneficial but also potentially damaging. While inspiring a meaningful research agenda, it risks, at the same time, undermining its success. Too much innovation can lead to alienation, too little innovation can result in irrelevance. The point of empirical legal research may, in part, be to unsettle.
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