16
Joseph H. H. Weiler
Introduction générale
governance, whereby the Union legislative and administrative branches do
not need the intermediary of the Member States, as is the default position in
general public international law, to reach individuals both as objects and sub-
jects of the law. And herein lies the challenge.
Direct Effect, inescapably and inextricably, implicates the Court in the
very issues of democratic and social legitimacy which are at least partially
at the root of current discontent. I want to argue further that the Court has
responsibilities all of its own which do not even fit under the rubric of ‘impli-
cated’.
But before I explain this thesis I want to state clearly what I am not argu-
ing:
My critique is not part of ‘the Court has no legitimacy’,
gouvernement des
juges
and all that. Nor is it an attack on the ‘activism’ of the Court or its her-
meneutics i.e. it is not part of more contemporary trends, notable in the USA,
which have (re)discovered Bickel’s silent virtues and normatively embrace re-
straint and a reduced role for courts and all
that
. I do not think Europe has a
gouvernement des juges
(whatever that means) nor do I find fundamental fault
with the hermeneutics of its essential jurisprudence, critical as one may be of
this or that decision or line of cases. Importantly, this critique does not have
as its purpose to argue that the constitutional jurisprudence such as
Van Gend
en Loos
was a normative mistake, a road which should not have been taken. As
a matter of its underlying values I believe it was not simply expedient but, in
post WWII Europe, no less than noble. The critique is, thus, not methodologi-
cal but substantive.
My approach rests on two propositions. First, it highlights a certain irony
in the constitutional jurisprudence. When the jurisprudence was adopted
it was often perceived (and there are indications in the cases that it was so
perceived by the Court itself) as being a response to, and part of, a broader
political discourse of integration often a response to non-functioning dimen-
sions of the political process. But there has been, both by the Court itself,
but especially its observers, at times a myopic view which has failed to ex-
plore deeper some of the consequences and ramifications of the constitutional
jurisprudence. There has been, for example, a refusal to see the way in which
the essential legal order constitutional jurisprudence is part and parcel of the
political democratic legitimacy crisis. Very often one has the impression that
though the political (in the sense of institutions) is well grasped in relation to
