Especially in the literature on legal integration in the European Union (EU), the contribution of organized advocacy groups is underappreciated. European integration and European law scholars usually focus on the actors whose voices appear in European Court of Justice (ECJ) rulings: the private actors that raised the legal suits, the national court that referred the case to the ECJ, and legal arguments made by the European Commission's legal service, national governments and Advocat General. All too often these voices, summarized and discussed in ECJ rulings, are analyzed as if only actors with standing to participate in the legal proceeding have influence, and as if arguments made to win a case are true representations of actor interests. Rachel Cichowski's book reveals that while advocacy groups may not participate directly in ECJ hearings, these groups significantly shape litigation, jurisprudence and governance outcomes.
The European Court and Civil Society, which won the American Political Science Association's 2008 Best Book Award, European Politics & Society Section, reveals the interplay of social mobilization, litigation and legislative strategies. Cichowski adds layer after layer to her analysis to get at this dynamic. She first codes every ECJ preliminary ruling involving social and environmental policy, and then process-traces ECJ doctrinal development regarding equal pay and the environment. Next, legal-doctrinal developments are integrated with legislative developments. Each layer is deeply contextualized revealing how national institutional variation affects legal and political developments. Cichowski then examines the advocacy movements themselves, showing how the legislation and litigation shaped their development. Finally, she brings her case studies together to offer a general account of the dynamic between litigation, mobilization and governance. Her analysis involves fifteen countries over thirty years; the enormity of the task is both impressive and intimidating. This explains why what is a fairly typical methodology in the study of judicial politics in a single country (e.g. integrating legislation, litigation and social mobilization), is so seldom seen in studying European law, and thus why a somewhat typical law and society finding is so fresh in the EU context.
Cichowski's tireless efforts to reconstruct what happened inside and outside of various courtrooms, before and after the legal proceedings, reveal a trove of findings, confirming what we knew and providing new insights. Her central finding is that the opportunity structure created by supranational litigation enhances democracy within the European Union, providing individuals and groups a reason to mobilize and then stay mobilized, and a means to influence a political process dominated by national governments. Because she analyzes pretty much every aspect of a universe of cases, the study also has treasures buried in the case studies. She investigates national variation in referring cases and reports trends in countries filing along with the ECJ ruling against ‘observations’ submitted to the legal proceedings. Cichowski systematically documents that the ECJ regularly rules against collective state preferences, and she finds that having a policy anchored in the Treaty versus policy made through directives shapes the politics of an issue.
While we have long known that legal entrepreneurs and organized interests shaped European legal integration, Cichowski gives us a systematic treatment that goes beyond anecdotes or examples. Moreover, her study explains how advocacy movements—and not just enterprising litigants and judges—are critical elements in legal integration. Advocacy movements connect individuals and groups with similar agendas, and they supply the ECJ with test cases. In turn, the ECJ's rulings facilitate the mobilization of these movements. Most novel are her findings regarding how the Commission's position at the nexus of the legal enforcement and the legislative process facilitates movement's mobilization. Cichowski shows us how the European Commission facilitates mobilization of advocacy movements by canvassing opinions of organized interests, creating European level offices to be lobbied, and by generating policy outputs (legislation, reports, statistics etc.) to be influenced. When legislative avenues fail to produce the desired results, these same actors turn to litigation (often with the Commission's blessing). The Commission, with the support of mobilized movements, then uses legal rulings to push the legislative process and to induce compliance with ECJ rulings. To my knowledge, no one else has connected the dots between the legislative and legal process in Europe, and how the Commission works across these domains.
Bringing organized interests and advocacy movements back in, and connecting litigation to legislation, provide important advances in the study of the ECJ. Legal integration accounts in the European context tend to be teleological. Because group mobilization is so critical, in Cichowski's account contingency abounds—if legal standing to litigate environmental and gender issues didn't exist, if national courts hadn't referred cases or enforced ECJ rulings, if the ECJ hadn't provided rulings that were helpful to the causes of advocacy movements, and if there hadn't been policy in addition to legal doctrine to influence, the history of European legal integration may have been different. Indeed one wonders if the ECJ could have become so important without advocacy movements, and if these movements would ever have coalesced at a European level without the ECJ and the Commission to provide opportunity structures organized interests could influence.
These findings are also important for understanding the dynamics of international law more generally. As was the case in Europe, social mobilization will be crucial for international law and international courts to extend their political influence. While she does not say this, it is clear from Cichowski's account that the ECJ was aided by the Commission's various endeavors to promote integration (and not just by its legal advice). Mobilization was also worthwhile because the European Union is the predominate source for market regulation in Europe. Multilateral legislation exists outside of the EU, and there are Secretariat in other international contexts who can offer sage advice to international judges. But the multilateral legislative process is both more decentralized and less extensive in other regions and issue areas. The reality that legislating is so central to Cichowski's account in itself suggests that those who generalize from the ECJ experience often miss a key part of the puzzle.
