This research project explores the dynamics of European legal integration by examining how foreign legal jurisprudence is transmitted into the domestic realm. This study performs a single country analysis of the importation of foreign jurisprudence from the European Court of Justice (ECJ) and from other member states of the European Union (EU) into the British legal system. The project explores to what degree foreign jurisprudence has influenced the British legal system and how much influence judicial actors (judges, lawyers, politicians) have in this process. European legal integration has two dimensions: vertical and horizontal. Most scholarship has focused on vertical legal integration, a top-down process where the establishment of a hierarchical legal order of courts and laws causes national courts to make increasingly similar decisions over time as they come under the formal authority of the ECJ. Less studied is horizontal legal integration, where national courts make increasingly similar decisions over time because national courts interact, borrow, and imitate each other informally. This dissertation investigates the latter dynamic, while also asking whether it has been fostered by vertical integration or, conversely, has encouraged vertical integration over time.
The analysis includes all British high court cases in immigration, banking, and family law from 1920-2010. The study will also include qualitative analysis of British parliamentary documents from both chambers, interviews with British Law Lords and law clerks, interviews with judges at the ECJ, and visits to British and EU judicial archives.
The influence of jurisprudence from myriad courts, both national and supranational, has been topic of discussion in the United States. This project provides a broader context for the American conversation by considering how ideas move within a national institution, between national and supranational institutions, and spread beyond the boundaries of the state in a country with legal officials who also see themselves as within a legal system distinct from the European system of which they are a part. The data collected during the course of this project will be made available to scholars.
My NSF project was designed to provide an understanding of British judicial involvement with foreign law and map the position of British Courts within a global legal order. To accomplish this, my project involved three goals. First, this project seeks to explore the relationship between the British legal system and the supranational legal system of the European Union (EU), principally through the European Court of Justice (ECJ). Second, this project examines the changing role of the British legal system within the Commonwealth legal system. Once the titular head and unquestioned source of commonwealth jurisprudence, the British legal system has evolved to be a consumer of commonwealth jurisprudence from a variety of sources, most notably Australia, Canada, and South Africa. Third, this project measures the influence and consumption of international law by British judges and their involvement in international conferences and legal arenas. NSF funds were used to spend five months conducting fieldwork in the United Kingdom and Luxembourg (home of the ECJ). Fieldwork included visiting five archives in the United Kingdom and two in Luxembourg and interviewing current and retired judges, law clerks, professors of law, solicitors, barristers, and other legal professionals. Significant results included strong evidence that British judges are far more receptive to foreign law from a wide variety of sources than the academic scholarship would suggest. From the interviews there was no evidence that British judges were hostile to European legal integration under the ECJ and that this issue concerns British Members of Parliament and public debate far more than it does Judges. For British judges it has become a forgone conclusion to adhere to EU treaties since they have been ratified by the British Parliament, they only become void if Britain ever leaves the EU. Surprising findings included a drastic reduction in the use of US foreign law in the past two decades due to the widely held view among British judges of the overly politicized nature of the American Supreme Court. Other findings included the ability of the Supreme Court of the United Kingdom and Law Lords to adapt to foreign law and the readiness with which they incorporate it into the British legal system without prejudice and the pragmatic use of foreign law by British judges as an attempt to refine judicial logic. The intellectual merit of the dissertation project includes a better understanding and conceptualization of horizontal legal integration and challenges notions that the British legal system is rigid and develops a new model of change and flexibility through the use of foreign law. The dissertation fills a void in the literature on European horizontal legal integration. Horizontal legal integration involves national courts making more similar decisions over time because the national courts interact, borrow, and imitate each other informally. The causes and role of horizontal legal integration are often ignored in the literature or seen as a side effect of vertical integration. Vertical legal integration is a top down process where the establishment of a hierarchical legal order of courts and laws causes national courts to make more similar decisions over time as they increasingly come under the formal authority of a higher court. Over time the member states’ judiciaries become more integrated as EU law expands and penetrates member states. My dissertation pursues further the argument that there are distinct dynamics of horizontal and informal legal integration. The dissertation project challenges the notion that formal legal systems such as the legal system of the United Kingdom are resistant to change. In their canonical work, Atiya and Summers describe the English legal system as formalistic and rigid (Atiyah and Summers 1987). "In the English system, rules tend to have, in our terminology, higher content formality, higher interpretive formality, and higher mandatory formality than the American system" (Atiyah and Summers 1987, pg 32). Contrary to Atiya and Summers description of the English legal system, my research has found it to be pliant and open to foreign jurisprudence when it is "useful" and English law is not explicit. The broader impact of the dissertation project includes advances in the understanding of the transmission of foreign jurisprudence and legal ideas. How ideas move within a national institution, bounce back and forth between national and supranational institutions, and spread beyond the boundaries of the state? My research explores how judicial communication in the form of transnational judicial dialogue can spread ideas across national legal boundaries. Transnational judicial dialogue is composed of horizontal, transnational interactions between national high courts judges, where judges across countries voluntarily draw upon each other’s rulings, logics, and academic writings and incorporate them into their own logics and rulings. The process of transnational judicial dialogue has furthered legal integration through the transmission of jurisprudence and legal concepts between different member state national judiciaries through informal, horizontal legal integration.
