The Congress of Vienna, Jean Godefroy

Democracy By Lawsuit

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Tommaso Pavone

2 (2016)

Pages 59-80


Can legal mobilization be a source of democratic legitimation for polities lacking alternative sources of popular participation? In this brief article, I evaluate whether participation in the European Union (EU)’s legal order via litigation stands to assuage some of the concerns regarding the EU’s “democratic deficit.” I begin by charting the evolving scope of EU law and suggesting that EU competences now extend far beyond complex economic realms over which we might legitimately delegate authority to an insulated set of technocratic institutions. Consequently, greater popular engagement in the process of EU integration would indeed be desirable. I then suggest that electoral mobilization is unlikely to resolve this problem (at least in the EU), and pivot to ascertaining whether litigation is a more fertile path forward. I suggest that, while formalized engagement with the EU legal order might beneficially contribute greater citizen input over the process of European legal development, this form of legal participation should complement, rather than substitute for, democratic participation.