Originalism at the European Court of Justice

Gareth Davies There are various criticisms made of the European Court of Justice (the Court) , of which the most common tend to share a lot of ground: they cluster around the idea that the Court pushes EU law too far. This chapter does not make an argument about whether those criticisms are fair or justified. Rather, the chapter tries to unpack the nature of the criticisms, and consider what kind of action or change would disarm them. The core point of the chapter is to challenge the coherence of a common narrative about the Court. That narrative would present the Court as activist, and integrationist, and purposive, and complain that it behaves more like a political organ than a legal one, constantly pushing the text beyond what it can bear. The narrative would then go on to suggest that in order to have a more legitimate and limited legal...