In The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe, Tommaso Pavone provides a paradigm-shifting perspective on the roles of judges and lawyers in the development of the European Union’s legal system. Unlike many works in the legal profession literature that portray judges as the dominant figures and lawyers as subordinate, Pavone presents a compelling argument that lawyers, in fact, took the lead in constructing the laws and regulations of the European Union. Using 353 interviews with legal professionals across Italy, Germany, and France, as well as participant observation in national courts, Pavone offers a richly detailed account of how lawyers shaped the legal construction of the European Union.
Pavone’s book challenges the widely held belief, especially among Anglo-American scholars, that judges enjoy a high degree of autonomy and direct power to make law. In contrast to their common law counterparts, continental European judges are described in the book as legal bureaucrats who are occupied with routine tasks and face significant internal and external controls from the judiciary and other branches of the state apparatus. Pavone’s extensive interviews and fine-grained ethnographic accounts reveal that European judges were generally uninterested in legal innovation, particularly when it comes to the application of EU rules in the early years of the European Union. This finding contradicts the mainstream “judicial empowerment” thesis in the international law literature, which posits that the construction and dissemination of EU law were primarily the result of European judges’ judicial innovation. This is a key contribution of the first half of the book, shedding new light on the limited role of judges in the construction of the EU legal system.
Pavone’s findings regarding the limited autonomy of European judges will not come as a surprise to students of civil law jurisdictions. The bureaucratic nature of continental courts makes judges risk-averse and subject to the institutional logics of the judicial system. This is a familiar challenge for civil law judges. For instance, recent studies of divorce judges in China have also demonstrated similar institutional constraints, such as the need for efficiency and stability. The ability of continental judges to effect legal or political change is typically limited. This stands in sharp contrast to the innovative role played by “Euro-lawyers,” which is investigated in the second half of the book. The powerlessness of judges in the first half of the book provides an important contrast to the more proactive role of a small group of Euro-lawyers in shaping the development of EU law.
The Ghostwriters is a significant contribution to the sociolegal scholarship on the legal profession, breaking new ground in several aspects. One novel aspect of Pavone’s research is his spatial analysis of law firm locations, which reveals the existence of “two hemispheres” of the bar in the practice of EU law. Large law firms located in major cities employ Euro-lawyers who primarily serve corporate clients, while smaller towns lack the necessary expertise or interest in EU law. As a result, EU-related cases only occur when Euro-lawyers travel to these places.
While the two hemispheres of the bar in the practice of EU law are primarily divided between large law firms in major cities and smaller towns lacking the necessary expertise, Pavone’s research reveals that this boundary is not as rigid as in other fields. In investigating the history of EU law development, he finds that the key actors were not only the legal elite in Brussels and the European Court of Justice, but also lawyers who possessed expertise and experience with EU law and practiced elsewhere in Europe, including in small firms and peripheral locations. Some of these lawyers later moved to larger firms, blurring the boundary between the two hemispheres. This dynamic illustrates the importance of individual lawyers in shaping the development of EU law, regardless of their location or institutional affiliation.
Although the experiences of early Euro-lawyers in promoting EU law may resemble those of cause lawyers who seek legal or social change, a closer examination reveals notable differences. First, the “cause” that united these lawyers was the legal integration of the European Union, but some lawyers had unique local agendas. This is exemplified in the case of football regulation, where two lawyers in the northern Italian town of Rovigo utilized their professional networks to influence judicial decisions and demonstrate the relevance of EU law to local judges and the Italian public, who are passionate about football. From football to wine to olive trees, the causes that Euro-lawyers championed on the ground vary widely, and there was no uniform agenda.
Second, while many cause lawyers in the sociolegal literature work for individual clients or serve public interests, Euro-lawyers often represent large corporations or government offices and do not typically mobilize with civil society organizations. Their positions in the legal and political spheres are much closer to the court and the administrative state, and their work strategies and status in the legal profession are shaped by their spatial proximity to the state. Therefore, it would be incorrect to view EU lawyering as simply another form of cause lawyering.
As Euro-lawyers increasingly concentrate in economic hubs and large corporate law firms in recent decades, it becomes challenging to compare them to public interest lawyers in the United States or “die-hard” lawyers in China who stand up for weak individuals against state power. Pavone characterizes these lawyers as “ghostwriters” who not only lobbied national judges to uphold European rules but also ghostwrote their legal documents as a way to advance EU law and promote institutional change. In a sense, they are “court-adjacent professionals” who took advantage of the knowledge gap between Brussels and national courts, as well as the disinterestedness of local judges, to build a career in EU law. However, as judges across Europe become more familiar with EU rules, it begs the question whether they still need ghostwriters as they did in earlier periods. Pavone’s book does not provide a clear answer to this question, but it is something worth considering as we observe the evolution of EU law over time.
For readers more interested in judges than lawyers, an important question raised in the book is whether the bureaucratic and routine nature of judicial work is a feature of continental law or a more general pattern also found in common law courts. It would be incorrect to assume that common law judges are free from institutional constraints and willing to invest their time to develop expertise in laws outside of their local jurisdictions. The conservative orientation of national judges is perhaps a universal phenomenon, with few exceptions. The distinctiveness of Europe lies in the plural legal orders of EU law and national law that coexist and simultaneously shape judicial work. Nevertheless, the extent to which Pavone’s arguments and findings can be applied beyond continental Europe is a question that awaits future research.
Overall, The Ghostwriters is a compelling and insightful book that challenges our assumptions about the legal profession in several important aspects. Pavone’s research offers a unique perspective on the spatial dynamics of the legal profession and highlights both the institutional constraints of judges and the importance of ghostwriting lawyers in advancing transnational law in Europe. The book’s analysis of the “ghostwriting” phenomenon sheds light on the ways in which Euro-lawyers have navigated the complex relationship between EU law and national legal systems. While the book lauds the contributions of these “silent heroes” of EU law, it is important to acknowledge the legal and political obstacles they face in navigating the ever-changing European legal landscape.
