The European Union: Discursive Bifurcation Revisited

Abstract

Abstract This chapter describes the European Court of Justice (ECJ), the highest court in the judicial system of the European Union. On the one hand, the ECJ generates official judicial decisions that consist of relatively short, deductive and magisterial judgments that are highly reminiscent of their French counterparts. On the other hand, the ECJ's judicial magistrates — and in particular its Advocates General — also routinely deploy a purposive or ‘teleological’ form of interpretation that stresses the more socially oriented goals of judicial interpretation. In short, the ECJ demonstrates a bifurcated form of judicial discourse that reproduces in large measure the French judicial system's own discursive bifurcation. What characterises and distinguishes ECJ argumentation is the public bifurcation of the Court's discourse. The ECJ publishes multiple judicial and quasi-judicial documents, including the official decision, the Opinion of the Advocate General, and (at least until recently) the Report of the Reporting Judge. This publication practice profoundly affects the discourses deployed by the ECJ and its interlocutors, leading to a particular and distinctive form of embattled judicial reasoning and argumentation.