Graham Butler

Project title

Judicial Minimalism by the European Court of Justice: Passivism, Conservatism, and Restraint in EU Law

What is your project about?

When discussion in EU law and EU legal studies (and other disciplines in the broader social sciences and the humanities) turns its attention to the Court of Justice of the European Union (CJEU) – the highest court in the EU, and the ultimate arbiter of legal disputes on matters of EU law – the institution is occasionally stylised and portrayed in the wrong light.   By some, the CJEU is sporadically, and improperly portrayed as an activist institution, with a pro-European integration approach to judicial decision-making. As an overarching claim or narrative, this is simply unseemly, and a perspective that does not stand up to wider scrutiny in the context of the broader case law of the CJEU. Rather, sadly, such assertions by some jurists, academics, and even the wider public, are expressions of a mere subjective viewpoint, based upon highly selective samples of cases, and is ordinarily a politically driven charge or accusation, without any basis in law or reason.   This project has an alternative approach, by adopting an entirely different course to understand the judicial role of the CJEU as a matter of EU law. Instead, the research undertaken in this project will elaborate how the CJEU acts in a minimalist (or passivist, conservative, and restrained) manner, in that engages in judicial minimalism more often than is typically recognised and understood. Contrary to the aforementioned standpoint, this project will reveal that the CJEU engages in judicial minimalism; and will demonstrate that the CJEU is not necessarily activist nor passivist, but rather, is a minimalist court.

How did you become interested in your particular field of research?

For the field of EU law as a whole, I first studied the subject during my undergraduate studies. My initial interaction with it came during the very university semester that the Treaty of Lisbon came into effect, which amended, once again, the prior treaties that establishes the EU system of government.   This major development in EU law meant, as a very practical level, the re-numbering of all the articles in the EU Treaties, and addition of the EU Charter of Fundamental Rights. For the university examination that semester, all the students had a particularly special task of having to not only memorise the existing Treaty numbers when referring to specific provisions of EU primary law, but also had to be able to regurgitate, in the exam, the new Treaty numbers for those same provisions (that had yet to come into effect)! This meant that we, as then students, had to pay extra special attention to our exam in ‘EU Law’, compared to our other exams that semester.   One can only suspect, and never be certain, but I believe that it is from that experience, and the use of the well-known Craig & De Búrca book on EU law, that my interest in the discipline spawned and blossomed from this experience. Today, I am very grateful that this unusual happened stance perhaps lead me to become an academic, and to develop my own line of thinking within EU law.

What are the scientific challenges and perspectives in your project?

This research project will apply an existing legal theory of adjudication – judicial minimalism (or judicial passivism, judicial conservatism, and judicial restraint) – that originates from legal scholarship in the United States, and apply it to decision-making in the European Union at the CJEU. Scholars of EU law have long neglected the works of American legal theorists, and the value they possess for establishing stronger insights in EU law. In the years and decades ahead, EU law will eventually have to embrace theoretical concepts in law from beyond its own shores, by looking further afield.   This said, legal scholarship focuses, quite rightly, on what courts of law have explicitly decided. By contrast, this project proposes something novel, by analysing what courts have implicitly not decided, and the underlying reasons for why this is so. In other words, where the CJEU is asked questions on certain issues, but it responds silently, or in another way altogether. Naturally, this phenomenon is much more difficult to detect, and therefore, typically goes unnoticed. This project will be staking the claim to the argument that judicial minimalism by the CJEU has been present in some way in its decisions throughout the institution’s history from the 1950s, be it in major, significant, and well-known cases; to the lesser-known, rudimentary cases.

What is your estimate of the impact, which your project may have to society in the long term?

Judicial minimalism is the exercise, by a court of law, of deciding no more than it has to, and viewed as an adjudication practice of refusing to answer all questions in all cases put before a court of law all of the time. Moreover, it sees that there be no sweeping or expansive judgments, avoidance of judgments that delve into political matters that are absent of legal criteria, and engagement with other institutions in a particular system of governance in a deferent manner.   Judicial minimalism reasserts the basis of the need for legal certainty, the predictability of law, and the necessary separations of powers in legal systems. It is consistent with a case law based system of precedent, and attempts at ensuring that any sharp turns that deviate from previous rulings are avoided. At its strongest, judicial minimalism is the CJEU limiting itself to absolutely necessary legal arguments, and casting aside ancillary arguments that are of little relevance to resolving a case that is immediately before it.   This way of judicial decision-making has to be better understood as a legal phenomenon, given the role that courts of law play as one important exercise of legal power that shapes our collective society.   Consideration of the role of the CJEU in European integration has been extensive, both historically, and contemporarily. But it is flawed. Judicial minimalism by the CJEU has not yet featured in this narrative, or is only slowly beginning to emerge. Elaborating on judicial minimalism through the project’s output will better help with the understanding the CJEU’s rulings, and place them in a broader context, demonstrating that judicial minimalism is on full display, and that the CJEU is not quite the motor or engine of European integration as sometimes claimed. The vision of the project’s impact is that it will contribute to ensuring that a more accurate portrayal of the CJEU’s decisions.

Which impact do you expect the Sapere Aude programme will have on your career as a researcher?

To be awarded the Sapere Aude Research Leader grant is a mark of great recognition for someone’s research ideas, and their abilities to do such research. I am truly honoured to receive such a prestigious award from Danmarks Frie Forskningsfond, and am eager to continue learning, reading, and writing.   Ever since I became an academic, my hunger and appetite to absorb more and create new knowledge has only become stronger. It is now time to realise the fuller potential of my research agenda. The resources that this award provides will enable me to lead a team of researchers, seizing the opportunity to craft an inimitable narrative in field of European legal scholarship, and to place the research outputs at the heart of the research field.

Background and personal life

Research can occasionally be an all-compassing calling, but a balance has to be found in everyone’s life. I try to keep my personal life as private as possible, but when not spending time with family and friends, I can usually be found with my eyes glued to a good non-law book on politics, economics, finance, history, or other similar categories of non-fiction books.