The Critical Promise of the New History of European Law

Abstract

Historians of contemporary Europe, whether legal or otherwise, are necessarily laggards — and thankfully so. The collective understanding of the contemporary world, and more particularly its change over time, inevitably deepens and becomes more nuanced when historians enter the scholarly fray. But that takes time. The discipline of contemporary history depends (not exclusively, of course, but importantly) on access to archival evidence. And during the time when the archives remain closed to historians, scholars from other disciplines understandably dominate the discourse and set the interpretive baseline against which the inevitably late-coming contemporary historians must later react. In the case of the law of European integration, important elements of this interpretive baseline have, over the last several decades, arguably become so widely accepted among political scientists and legal scholars that much of it stands as a kind of conventional wisdom. This is unfortunate, at least from the historian’s perspective. The reason is that this baseline now includes a range of implicit historiographical assumptions — for example, about periodisation (that is, when legal integration ‘began’ in a scholarly significant sense), as well as about the definition of the purported object of study (most notably, the seemingly ‘constitutional’ character of the process of European integration) — which today demand critical historical scrutiny. This, I would suggest, is the promise of the new history of European law, as represented by the several contributions in this special issue. These articles both critically test key elements of this too-well-settled interpretive baseline and also offer considerable fresh insight that can only come from patiently waiting to see what the archival evidence uncovers. Building on a similar critique of that baseline, the present article draws on my own recent work on European integration to argue that the EU can profitably be understood, in legal-historical terms, as a denationalised expression of diffuse and fragmented (that is, ‘administrative’) governance. The basic elements of that governance emerged in Western Europe over the course of the inter-war and post-war decades, and these elements have continued to shape EU legal history up to the present.

This is the capstone article in a special issue edited by Morten Rasmussen (University of Copenhagen) and Bill Davies (American University) focusing on the recent historiography of European legal integration, published in the journal Contemporary European History.

Keywords: European integration, legal history, European Union, administrative governance