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Power to the legal professionals: Is there an Americanization of European law?

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  • Frans Van Waarden

Abstract

Twelve years ago, Robert Kagan asked “Should Europe worry about adversarial legalism?” He answered this question with a qualified “no,” and identified a number of sources of resistance to such a trend. More recently, he broadened the issue in this journal by asking whether European countries experience an “Americanization” of their legal systems. The articles in this Symposium on the Americanization of European Law all revisit that question. The present article introduces the topic, discusses the elements that make up adversarial legalism, and summarizes and compares the findings of the articles in the Symposium. The articles find an increase in one dimension of adversarial legalism, namely, more legalism, that is, more litigation, more formalism, and more verdicts interfering with politics, but hardly any increase in adversarialism. Tenacious pre‐existing national legal and political cultures and institutions resist a further move in the direction of American style adversarial legalism. The mix of more litigation, more legalism, and more politicization, overlaid on the pre‐existing hierarchic authority of courts and legal functionaries has, however, strengthened the societal and political power of the judiciary vis‐à‐vis other powers. A professional elite is increasingly making the political choices that in a democratic society ought to be made by democratic representatives. Perhaps Europe should worry about this.

Suggested Citation

  • Frans Van Waarden, 2009. "Power to the legal professionals: Is there an Americanization of European law?," Regulation & Governance, John Wiley & Sons, vol. 3(3), pages 197-216, September.
  • Handle: RePEc:wly:reggov:v:3:y:2009:i:3:p:197-216
    DOI: 10.1111/j.1748-5991.2009.01056.x
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    References listed on IDEAS

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    1. Héritier, Adrienne & Lehmkuhl, Dirk, 2008. "The Shadow of Hierarchy and New Modes of Governance," Journal of Public Policy, Cambridge University Press, vol. 28(1), pages 1-17, April.
    2. Kelemen, R. Daniel & Sibbitt, Eric C., 2004. "The Globalization of American Law," International Organization, Cambridge University Press, vol. 58(1), pages 103-136, February.
    3. Rehder, Britta, 2007. "What Is Political about Jurisprudence? Courts, Politics and Political Science in Europe and the United States," MPIfG Discussion Paper 07/5, Max Planck Institute for the Study of Societies.
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