The Court of Justice in times of politicisation: ‘law as a mask and shield’ revisited
Publikation: Bidrag til tidsskrift › Tidsskriftartikel › Forskning › fagfællebedømt
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The Court of Justice in times of politicisation : ‘law as a mask and shield’ revisited. / Blauberger, Michael; Martinsen, Dorte Sindbjerg.
I: Journal of European Public Policy, Bind 27, Nr. 3, 2020, s. 382-399.Publikation: Bidrag til tidsskrift › Tidsskriftartikel › Forskning › fagfællebedømt
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TY - JOUR
T1 - The Court of Justice in times of politicisation
T2 - ‘law as a mask and shield’ revisited
AU - Blauberger, Michael
AU - Martinsen, Dorte Sindbjerg
PY - 2020
Y1 - 2020
N2 - This contribution analyses if and under what conditions bottom-up pressures constrain the Court of Justice of the European Union (CJEU). Neofunctionalists famously explained the power of the Court by its use of ‘law as a mask and shield’. Due to its technical nature, the Court is able to mask the political substance of ‘integration through law’ and to shield it from political challenges. We revisit this argument in times of politicization of the EU and develop a typology of four constellations depending on different kinds of bottom-up pressures. We argue that depoliticized integration through law still functions, to varying degrees, in face of either governmental contestation or public politicization. By contrast, if member state governments and the public jointly oppose further integration through law, the Court is constrained as further expansive jurisprudence could even reinforce politicization and risk political backlash. We illustrate our argument with case law on EU citizenship.
AB - This contribution analyses if and under what conditions bottom-up pressures constrain the Court of Justice of the European Union (CJEU). Neofunctionalists famously explained the power of the Court by its use of ‘law as a mask and shield’. Due to its technical nature, the Court is able to mask the political substance of ‘integration through law’ and to shield it from political challenges. We revisit this argument in times of politicization of the EU and develop a typology of four constellations depending on different kinds of bottom-up pressures. We argue that depoliticized integration through law still functions, to varying degrees, in face of either governmental contestation or public politicization. By contrast, if member state governments and the public jointly oppose further integration through law, the Court is constrained as further expansive jurisprudence could even reinforce politicization and risk political backlash. We illustrate our argument with case law on EU citizenship.
U2 - 10.1080/13501763.2020.1712460
DO - 10.1080/13501763.2020.1712460
M3 - Journal article
VL - 27
SP - 382
EP - 399
JO - Journal of European Public Policy
JF - Journal of European Public Policy
SN - 1350-1763
IS - 3
ER -
ID: 238369291