A guest lecture at the Yale Law School Tuesday afternoon focused on how the European Court of Justice’s failure to provide a democratic process contributed to the United Kingdom’s recent decision to exit the European Union.
University of Connecticut law professor Peter Lindseth addressed a class of 30 Yale law students as part of a fall course called “Brexit and the Law” taught by YLS professor Harold Hongju Koh. Lindseth, a specialist in comparative and administrative law, European integration and international economic law, framed the outcome of the Brexit vote in terms of the ECJ, which he said inadequately represented the people of Britain and was overly technocratic. He called for the role of the court to be transformed and claimed that Brexit has largely been a result of the authoritarian nature of the ECJ.
“The court has been insufficiently sensitive to preserving democracy on the national level in the interest of serving the supranational level,” Lindseth said. “I approach European integration from the perspective of a comparative administivist.”
Since the June vote on the so-called Brexit — or British exit from the EU — politicians and pundits have speculated that leaving the European Union could mean more for Britain than simply halting the influx of immigrants to Britain. It could also cut off British access to the single European market, the tariff-free transfer of goods and services across Europe created by the EU.
Lindseth said Brexit is especially relevant to his teaching and research.
“My field is administrative law: structural, procedural law of regulatory agencies. I study it comparatively and historically. I’m also a specialist in European integration, and unlike the dominant interpretation that tends to view the EU as a constitutional entity in its own right, I argue that it is a supranational, administrative agency, and that argument then has all sorts of normative and legal implications about how we interpret the treaty and about how try we strike a balance between supranational power and democratic and constitutional duties on the national level,” Lindseth told the News after the lecture.
Lindseth noted that it is a challenge for the EU to come up with guiding principles that acknowledge the “fundamentally administrative character of European integration.” The lecture hit home for some of the law students in the class who are from Europe — two told the News that Lindseth, an American outsider, offered a unique perspective on Brexit.
“Being from Europe, the whole discussion on what the role of the [European Court of Justice] is, especially now when they might have a say in Brexit, is something that is discussed in Europe a lot already. I think the most important thing for me was getting an external perspective, like a unique perspective, from a country that somehow went through the process of becoming a nation a couple hundred years ago,” said Conor Casey LAW ’17, who studies European law.
Of the 30 people in the class, around one-fifth hailed from Eastern Europe. However, many of these international students disagreed with Lindseth’s negative opinion of the European Court of Justice. Students took advantage of the brief question-and-answer session at the end of the lecture to voice their disagreements with Lindseth.
But even the European students disagreed with each other over the role of the ECJ.
“Two people that come from the same place have very different views on the desirability of the court’s harsh rule,” said Till Holterhus LAW ’17.
The international law community is currently debating whether the negotiations between Britain and the EU will result in a “hard” or “soft” Brexit — a soft Brexit permitting Britain’s access to the European Union’s single market and a hard Brexit banning Britain from this market altogether, the students explained. The students also noted British Prime Minister Theresa May’s recent initiatives to limit immigration and curtail the flow of noncitizens into the country.
Lindseth, who criticized the EU’s status as an “autonomously constitutional entity,” and added that the EU incorrectly believes it can have nation-states, democratic politics and economic integration simultaneously. In reality, Lindseth said, only two of these three things can exist in harmony.
Lindseth noted that people within the EU generally do not experience the union as a democratic force.
“You need to have some degree of autonomy at the EU level, but in interpreting the [EU constitutional] treaty, we should always be cautious in order to ensure that you are not overriding core aspects of democracy on the national level,” Lindseth said.
The European Union was established in 1993.