Constructing the European Legal State: The Co-Evolution of the EU and the ECHR from the Perspective of American Political Development

Abstract

This paper seeks to leverage the theoretical approach of American Political Development (APD) scholarship to provide an initial explication of the emergence of the European legal state - defined as the area of jurisdictional overlap between the European Union (EU) and the European Convention on Human Rights (ECHR). I argue that the European legal state co-evolved through three distinct yet mutually constitutive streams of political construction: a) a process of ideological construction, b) a process of institutional construction, and c) a process of doctrinal construction. Although all three processes occurred separately within the EU and ECHR, it is their co-evolution and interaction that is of particular interest here. The process of ideological construction, detailed in Section III, was authored by the Eurofederalists, human rights activists, judges, lawyers, politicians, and academics who sought to promote economic interdependence and fundamental rights protections in Europe by transcending what they perceived to be an increasingly anachronistic Westphalian system of nation states. Section IV then turns to the process of institutional construction. Beyond the founding of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) (and the contemporary accession process of the EU to the ECHR), this section highlights the importance of institutional practices - like judicial review and the interactions between domestic and European courts - for the institutional entrenchment of the European legal state. Finally, Section V provides an overview of the third process - that of doctrinal construction. It show how substantive differences between EU and ECHR law sparked tensions evident in the case law of both the ECJ and ECtHR, necessitating doctrinal reconstructions as both institutions became central fora for the continuous renegotiation of a functional modus vivendi. Note that the distinct nature of each process requires reliance on different forms of empirical evidence: Section III places particular emphasis on speeches and declarations; Section IV is focused more heavily on Treaty and Convention provisions; and Section V privileges case law. Ultimately, by treating the co-evolution of the European legal state as a process of political construction with three distinct yet mutually constitutive dimensions, the argument forwarded here represents an initial and cursory attempt to theoretically do justice to the fascinating empirical depth of European political development.