Arnull on judicial activism of the ECJ

Judicial Activism and the Court of Justice: How Should Academics Respond?

Anthony Arnull

University of Birmingham


January 17, 2012

Maastricht Faculty of Law Working Paper No. 2012-3

Abstract:     
Do academics have a role to play in responding to judicial activism by the European Court of Justice? If so, what should that role be? Should they seek to defend the Court against accusations of judicial activism? Should they align themselves with the Court's critics in an attempt to persuade the Court to change its ways? Or should they adopt a more reserved posture, criticizing the Court on technical grounds where a decision appears to be legally unsound but at the same time recognizing the special features of the EU legal order and the role attributed to the Court under the Treaties? In an attempt to answer these questions, this paper begins by considering the perception academics have of themselves and what we mean by judicial activism. It then examines whether, and if so to what extent, the Court may be considered activist. It concludes with some tentative suggestions about the role academics might play in responding to the Court's case law.
Number of Pages in PDF File: 36
Keywords: academics, baseline, civil law,common law, consensus, contextual, contra legem, doctrinal, European Court of Justice, interdisciplinary, Judicial activism, rule of law, USA

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1986817