Numerous scholars have commented on the judicial style of the Court of Justice of the European Union and its non-Herculean judges, generally disapproving of its minimalist reasoning, lack of transparency, and failure to draw openly on comparative legal sources to avoid inconsistencies and weaknesses in its legal reasoning. In a debate where both historians and sociologists have provided new avenues of research, the paucity of comparative lawyers is surprising because European law is a quintessential example of a transnational legal order. Since its inception, European judges, advocates general, and lawyers in Luxembourg have drawn inspiration from the different national legal traditions of the member states through a comparative exegesis of legal rules. In departing from a comparative exegesis or a legal origins approach, this Article shows how the Court’s decisions often manifest influence from multiple legal systems, suggesting that judges, advocates general, and lawyers are influenced by — and have reconciled the contradictions among — national legal traditions and judicial styles that acquire different meanings in the European context. Resorting to national traditions might be a valuable legal strategy for judges and advocates general seeking to advance new legal concepts, incorporate new procedures, or reject changes to EU law. Even though there are inconsistencies and weaknesses in the Court’s jurisprudence, by comparing national legal traditions “at work,” they can be explained as the residue of different legal styles that have come into conflict or tension over time.
National Legal Traditions at Work in the Jurisprudence of the Court of Justice of the European Union: Symposium: Foreign Law in Constitutional Courts,
American Journal of Comparative Law
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/616