Replacing pillars with themes and problems

One of the first things colleagues from other institutions seize upon when thinking about the presence of the socio-legal in the EU curriculum is its openness to a variety of disciplinary influences - including political philosophy, political economy and social policy - but this openness tends to be postponed for postgraduate study. In assuming there is some theory-free bare bones of EU that needs to be studied first at undergraduate level, we accidentally treat one account - typically a doctrinally influenced pro-market account - as 'objective'. Instead, it is worth using these interdisciplinary influences to introduce different ways of thinking about EU law early on.

EU law is an amalgam of social and political sciences and law: we are forced to confront law as an instrumental product of economic, political and social objectives, so offering strong and current criticisms of 'ideal' theories such as natural law and moral absolutism (Aggestam, 2008, p. 8). It combines such a variety of perspectives, and its legitimacy bears such different interpretations as to create problems for legal positivists (as argued by Obradovic, 1996, p. 197) and for social, political, psychological and ethnographic theories on the nation state, such as Durkheim's 'organic solidarity' (Durkheim, 1984), Hobbes's requirement of sovereign coercion (Hobbes, 2008), Gellner's 'single conceptual currency' (Gellner, 1983, pp. 32-4) and Hegel's shared national destiny (Hegel, 1991). We also get a different view of emerging constitutionalism than we might otherwise in the UK alone - the dynamic and fluid nature of a constitution being rather easier to comprehend in a young and growing polity (Pernice, 1999; Besselink, 2007).

Possible interdisciplinary themes running throughout EU law include democracy, legitimacy and citizenship, migration, inter-governmental and supra-national power relations, capitalism, public understanding of the EU, liberalism, solidarity and human rights protection. And each of these themes is tied up with law procedurally and substantively. A themes-led approach requires the integration of institutions with substantive law, not only from a practical point of view (to understand the factors at play in decision and case-law making) but also from a theoretical point of view, to question the purpose and nature of the substantive law. By bringing institutions, principles and substantive law together, it should be possible to think about the forces feeding into the shape of the law in the UK, for instance thinking about the role of law as an international bartering tool/product of compromise, and thinking about the attitudinal factors underpinning EU judicial decision-making - are the judges really 'inter-judicial' rather than national?

The nature of our course is such that the traditional three-pillar module simply would not work. The module is divided into blocks and each block has to be driven by problems or simulated cases, so a division between substantive/non-substantive is not an option. But I hope that is a good thing; encouraging us to shake off some of the positivism that leads us to trot out lots of legal 'facts' - slotted into institution/principle/law pillars.

Analytical themes draw the institutional and the substantive together. The challenge for us at YLS is to create problems that lead students into asking those deeper questions beyond the applicable substantive law - to use arguments relating to institutions and principles in critiquing that law. For non-PBL syllabi, it should be possible to be a bit more directional and explicit about what the themes entail, and what research is required to engage in a more than superficial way with the law in question. An example theme from the above list and also used at York is legitimacy, which as a socio-legal question combines substantive and institutional components. To tackle this, we recently presented an area of law in which EU developments - ideally in terms of legislation and case law - have had significant impacts upon parallel UK law, and also raises bigger questions about morality and law, such as discrimination law. On questioning the nature and purpose of discrimination law, we moved on to the political element of the law, and the relationship, and sometimes differences of pace, between social developments and changes to the law. In looking at particular cases (e.g. Coleman [2008]), we asked students to think about whether there were differences between the principles of judicial interpretation in the ECJ and in domestic courts, and to think about international judicial activism and the role of the ECJ as the 'true' interpreter of European legislation. Then we turned to that legislation itself and thought about the social conditions that led to its creation, and the different inputs different institutions had, and specifically the different inputs the UK had within those institutions, and invited students to assess whether the balance was fair and/or democratic, and then to seriously question what we mean by democratic input. Finally, it all tied back to the subject matter, by questioning whether the area of law is one in which the EU was a legitimate actor.

The problem we used to delve into the democratic deficit question and related legitimacy issues was partly a market access problem, to introduce the concept of and important case law pertaining to the internal market; it involved an outraged Member of the European Parliament (MEP), whose imprecations about the EU in general were used as a trigger to look behind, and question the validity of, the law. It also raised questions about another theme - public understanding of the EU, on which subject students could be invited to find evidence.

Eurostat (European Commission statistics database) and Eurobarometer (European Commission Public Opinion surveys) are very helpful for developing a public-understanding theme - as explored in learning activities below; but so are the students' own opinions (encouraging a bit of reflection and low-level empirical investigation), and the materials they can readily gather from mainstream media. We also encourage students to look at and question the various presentations of reality made by national politicians, and to compare and contrast with positions taken by UK representatives within EU fora. When discussing the political controversy generated by according social rights to migrants, it is possible to draw students towards a variety of qualitative studies on experiences of vulnerable workers (Citizens Advice 2005; Trades Union Congress, 2008), studies on asylum-seeker experiences (Refugee Action, 2006), non-governmental organisations' (NGO) analyses of welfare reform (Citizens Advice, 2008; Shelter, 2011), and quantitative studies into homelessness and nationality (Department for Communities and Local Government, 2008). There are plenty of small-scale investigations students can undertake themselves, for instance, examining European Parliament (EP) debate texts. In the context of discrimination law, if students have seriously considered issues of legitimacy, legitimate objectives, and ideological capture, and other possible arguments for and against EU involvement, it is then interesting - and I daresay disillusioning - to look at EP debates to examine the reasons given by those voting. For instance, Polish MEP (Konrad Szymanski) declared in an EP debate that the proposed measures on extending the framework Equal Treatment Directive to cover services were the product of a European left 'obsessed with pushing through the latest homosexual demands by any possible means' (EP debate, 2009, [14]).

The issue of ideological tension is something that we have only touched upon tangentially at York, but judging by student interest - and given its sheer centrality - it is something we should think about developing more clearly as a theme. Students were very receptive to related materials, and a considerable majority took up the opportunity to do an optional learning activity contrasting Marxist (Peebles, 1997), liberal (Majone, 1993) and 'responsible capitalist' (Maduro, 1999) explanations for the EU's development - and they showed a higher degree of political engagement and social awareness than that with which law students are typically credited (Legal Week, 2011).[1] We could think about engaging more with the 'heart of Europe' debate, possibly teaching competition law and social law together, using social-theoretical studies of competition law (Snyder, 1989).

  • [1] The Law Student survey 2010 on reasons for studying law and influences on choice of firmfound that out of 18 factors salary was the most important.
 
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