¹ Familiar examples include the ‘purely internal situation’ rule in Citizenship law (Case C-34/09 Ruiz-Zambrano [2011)] ECR I-000); the ‘no horizontal direct effect’ rule for Directives (eg Case C-144/04 Mangold [2005] ECR I 9981); and the instability of the ‘selling arrangements’ category in the post-Keck case law on the free movement of goods.

² Famously Case C-50/00 Unión de Pequeños Agricultores [2002] ECR I 6677 (Opinion of Advocate General Jacobs, para 28: ‘complete system of remedies’).

³ A more detailed overview of varieties of perfectionist legal thought, and a discussion of the obvious objection that participants in any legal order can surely be expected to want to make theirs the best it can be, are presented below, in section II.

⁴ Vauchez, A, ‘The Force of a Weak Field: Law and Lawyers in the Government of the European Union (For a Renewed Research Agenda)’ (2008) 2 International Political Sociology 128, 134CrossRefGoogle Scholar.

⁵ Cf Scharpf, The Double Asymmetry of European Integration (MPfIG Working Paper 09/12); Everson, M and Eisner, J, The Making of a European Constitution (London, Routledge, 2007) 2 ffGoogle Scholar.

⁶ Cf Vauchez, , ‘The Force of a Weak Field’ (n 4) 129 Google Scholar; Everson, and Eisner, , Making of a European Constitution (n 5) 3 Google Scholar.

⁷ Cf Vauchez, ‘The Force of a Weak Field (n 4) 129 ff. This ‘dependent variable’ approach can be seen as an aspect of more general, pervasive, instrumentalist understandings of law.

See, eg, Joerges, C, ‘Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration’ (1996) 2 European Law Journal 105, 105CrossRefGoogle Scholar (‘political science analyses, …, tend to rely upon an instrumentalist view of the legal system which fails to acknowledge the Law’s normative logic and discursive power’).

⁸ Cf Bourdieu, P, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 814, 816Google Scholar.

⁹ Cf Riles, A, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (Chicago, University of Chicago Press, 2011) 18 CrossRefGoogle Scholar.

¹⁰ García-Villegas, M, ‘Comparative Sociology of Law: Legal Fields, Legal Scholarships, and Social Sciences in Europe and the United States’ (2006) 31 Law & Social Inquiry 343, 344CrossRefGoogle Scholar. This call was taken up explicitly in Gessner, V and Nelken, D, European Ways of Law: Towards a European Sociology of Law (Oxford, Hart Publishing, 2007) 7 Google Scholar.

¹¹ Everson and Eisner, Making of a European Constitution (n 5) 5–9. The authors call for ‘re-locating the primary focus on the role of law in constitutional progress’ (6), and for attention to the ‘fundamental, but nitty-gritty question, of how law maintains its own impartiality, or autonomous character, but, likewise, responds appropriately to a real-world and its very immediate social and political demands’, the question, in short of ‘law’s proprium’ (9).

¹² Kelemen, D, Eurolegalism: The Transformation of Law and Regulation in the European Union (Cambridge, Mass, Harvard University Press, 2011)CrossRefGoogle Scholar.

¹³ Notably in their selection of the relevant materials (legal doctrine, social processes, institutional organisation, etc) and the conceptual level at which observations are framed (law’s ‘proprium’, the nature of a ‘juridical field’, a ‘style’ of law and regulation, etc). See also Loughlin, M, ‘The Functionalist Style in Public Law’ (2005) 55 University of Toronto Law Journal 361 CrossRefGoogle Scholar (including elements of political and constitutional theory alongside ideas within— and on—law proper).

¹⁴ Cf Joerges, C, ‘Law, Economics and Politics in the Constitutionalisation of Europe’ (2002–2003) 5 Cambridge Yearbook of European Legal Studies 128 Google Scholar. ‘European legalism’ will be defined here as dominant, if often implicit, views of what ‘good law’ should look like, operative among legal elites, in the broad area of ‘European constitutional law’, comprised of EU law and European human rights law. These views can be characterised as ‘working legal thought’, active at the level of ‘the higher reaches of the law where the learned tradition is propounded’ and judicially implemented. See, for these terms: Galanter, M, ‘Why the Haves Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law & Society Review 95, 147CrossRefGoogle Scholar; Grey, TC, ‘Judicial Review and Legal Pragmatism’ (2003) 38 Wake Forest Law Review 473, 478Google Scholar.

¹⁵ Roellecke, G, ‘Prinzipien der Verfassungsinterpretation in der Rechtsprechung des Bundesverfassungsgerichts’ in Starck, C (ed), Bundesverfassungsgericht und Grundgesetz II (Tübingen, Mohr, 1976) 33 Google Scholar. As the FCC put it in a 1965 decision, the Basic Law was understood to stand for ‘eine einheitliche Ordnung des politischen und gesellschaftlichen Lebens der staatlichen Gemeinschaft’ (‘a unified ordering of the political and social life of State and society’). See BVerfGE 19, 206; 220 (‘Kirchenbausteuer ‘) [1965]. Others spoke of the ‘Allgegenwart des Verfassungsrechts ‘ (‘the omnipresence of constitutional law’). See Ehmke, H, ‘Prinzipien der Verfassungsinterpretation’ (1963) 20 VVDStRL 70–71 Google Scholar.

¹⁶ Cf Häberle, P, Die Wesensgehaltgarantie des Art. 19 Abs. 2 Grundgesetz(Karlsruhe, CF Müller, 1962) 6 Google Scholar (citing Rudolf Smend). See also Hesse, K, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (Heidelberg, CF Müller, 1975) 5 Google Scholar (relying heavily on Smend’s integration theory).

¹⁷ Häberle, Die Wesensgehaltgarantie (n 16) 44 (‘The Constitution intends, through its guarantees of constitutional rights, to make sure that normativity and normality run “parallel”’) (emphasis added). The anthromorphism is typical for the relevant discussions. A leading critic of the tendencies described here, Ernst Forsthoff, argued that the FCC’s case law showed how deeply the Court’s members were ‘conscious of its comprehensive responsibility for the constitution-conformity of legal life’ (emphasis added in translation). See Forsthoff, E, ‘Die Umbildung des Verfassungsgesetzes’ (1959) in Rechtstaat im Wandel (Stuttgart, W Kohlhammer, 1964) 151 Google Scholar.

¹⁸ Hesse, Grundzüge des Verfassungsrechts (n 16) 28. Hesse’s famous labels for this process were ‘optimierung’ and ‘das Prinzip der praktischen Konkordanz’, or ‘the principle of practical concordance’, both said to be required by the underlying principle of the unity of the Constitution.

¹⁹ Müller, F, Normstruktur und Normativität (Berlin, Duncker & Humblot, 1966) 213 Google Scholar.

²⁰ An additional complication is that the analysis required—of post-War German constitutional legal thought itself, in this case, and of its imprint on ideas on a European level—easily exceeds what is possible in the space of this contribution. I explore these ‘perfectionist’ themes in early post-War German constitutional legal thought, and their reverberations in contempo rary global constitutionalism, at length in forthcoming work.

²¹ Bourdieu, P, Outline of a Theory of Practice (Cambridge, Cambridge University Press, 1977) 164 CrossRefGoogle Scholar.

²² The most significant candidate for a category encompassing much—though not all—of these ‘perfectionist’ themes would be Rudolf Smend’s idea of ‘material constitutionalism’.

²³ See, eg, Sunstein, CR, Radicals in Robes: Why Extreme Right-Wing Courts are Bad for America (New York, Basic Books, 2005)Google Scholar; Fleming, JE, Securing Constitutional Democracy: The Case of Autonomy (Chicago, University of Chicago Press, 2006)Google Scholar; Dworkin, R, Law’s Empire (Oxford, Hart Publishing, 1998) 229 Google Scholar ff (interpreting law so as to make it the ‘best it can be’), 243 (‘best light possible’). Dworkin’s seminal notion of ‘integrity’ is often treated as synonymous with ‘perfection’.

²⁴ Sunstein, for example, observes that ‘[p]erfectionism can easily be found in the major law schools, but … is rare on the federal courts’, in contrast to the ‘fundamentalism’ (originalism) and ‘minimalism’ which he sees as ‘the principal antagonists in contemporary constitutional law’. Sunstein, , Radicals in Robes (n 23) 31–33 Google Scholar.

²⁵ Of course this comparative approach also comes with an important limitation: one cannot assume that perfectionism itself will mean exactly the same thing in different settings. There are likely to be different strands of perfectionist legal thought, receiving varying degrees of emphasis, as between, say, the German, European or US settings. The article builds on—and, it is argued, confirms—the hypothesis that there are sufficient family resemblances between these different versions to justify studying them together as part of the same basic category. See also n 107, below.

²⁶ It should be noted that the comparison with US legal materials, conducted below, refers exclusively to constitutional legal thought.

²⁷ Cf Hurka, T, Perfectionism (Oxford, Oxford University Press, 1993)Google Scholar.

²⁸ Chalmers, D, ‘Gauging the Cumbersomeness of EU Law’ (2009) 62 Current Legal Problems 405 CrossRefGoogle Scholar. For another discussion of perfectionist themes and their relation to the scope and authority of EU law, see: Somek, A, Individualism: An Essay on the Authority of the European Union (Oxford, Oxford University Press, 2008)CrossRefGoogle Scholar.

²⁹ Chalmers, , ‘Gauging the Cumbersomeness of EU Law’ (n 28) 412 Google Scholar.

³⁰ Chalmers uses the term at 412.

³¹ Chalmers, , ‘Gauging the Cumbersomeness of EU Law’ (n 28) 406 Google Scholar. EU law’s unusally ‘demanding’ character, as compared to domestic law, is thought to stem from the need to justify its transnational existence.

³² It may be noted that the idea of ‘perfect’ individual freedom in a libertarian sense is very unlikely to be part of such a European political morality, and does in fact prove a much better fit with important strands in American constitutional legal thought. See, eg, Fried, C, ‘Perfect Freedom, Perfect Justice’ (1998) 78 Boston University Law Review 721 Google Scholar (calling this ‘the Lochnerian vision of perfect freedom’, after the famous early 20th century Supreme Court decision).

³³ The link between formality and compulsion (more commonly called constraint) is well known. See, eg, Schauer, F, ‘Formalism’ (1988) 97 Yale Law Journal 509 CrossRefGoogle Scholar. The argument underlying the present article is that an ideal of ‘perfect justice on the circumstances of every case’, and other perfectionist legal ideals, might engender a similar kind of compulsion.

³⁴ Eg Weatherill, S, ‘Competence creep and competence control’ (2004) 23 Yearbook of European Law 1 CrossRefGoogle Scholar.

³⁵ Monaghan, HP, ‘Our Perfect Constitution’ (1981) 56 New York University Law Review 353 Google Scholar (referring to perfectionism as a ‘culture theme’, 374). For a recent reinterpretation of Monaghan’s thesis, see: Tushnet, MV, ‘“Our Perfect Constitution” Revisited’ in Berkowitz, P, Terrorism, The Laws of War, and the Constitution (Stanford, Hoover Institution Press, 2005)Google Scholar. See also Graber, Marc, ‘Our (Im) Perfect Constitution’ (1989) 51 Review of Politics CrossRefGoogle Scholar (describing an ‘attitude of perfect constitutionalism’).

³⁶ Monaghan, , ‘Our Perfect Constitution’ (n 35) 360–61Google Scholar.

³⁷ Monaghan, , ‘Our Perfect Constitution’ (n 35) 360–61Google Scholar. (Monaghan summarises a typical ‘perfectionist’ position as the idea that ‘constitutional adjudication should enforce those … values which are fundamental to our society’, referring to Paul Brest).

³⁸ Monaghan, , ‘Our Perfect Constitution’ (n 35) 358 Google Scholar.

³⁹ Sunstein, Radicals in Robes (n 23) 32 Google Scholar.

⁴⁰ Eg, Dworkin, , Law’s Empire (n 23) 225 Google Scholar.

⁴¹ Dworkin, , Law’s Empire (n 23) 147 Google Scholar.

⁴² Dworkin, R, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, Mass, Harvard University Press, 1996) 36 Google Scholar.

⁴³ Ibid, 37.

⁴⁴ Dworkin, , Freedom’s Law (n 42) 38 Google Scholar.

⁴⁵ See in particular Sunstein, CR, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass, Harvard University Press, 1999)Google Scholar.

⁴⁶ Sunstein, CR, ‘Foreword: Leaving Things Undecided’ (1996) 110 Harvard Law Review, 6–7 and 15Google Scholar. See also Sunstein, , One Case at a Time (n 45) 62 Google Scholar (writing that Justices Hugo Black and Antonin Scalia are ‘substantive maximalists in the sense that [they have] an elaborate understanding of the nature of the Constitution’s substantive commitments’).

⁴⁷ In his earlier work, Sunstein only uses the term ‘perfectionism’ in its traditional moral and political philosophy sense.

⁴⁸ Sunstein, , Radicals in Robes (n 23) 26 Google Scholar.

⁴⁹ Sunstein, , Radicals in Robes (n 23) 26 Google Scholar.

⁵⁰ Sunstein, , Radicals in Robes (n 23) 27–28 Google Scholar.

⁵¹ Sunstein, , Radicals in Robes (n 23) 44, 50Google Scholar.

⁵² Sunstein, , Radicals in Robes (n 23) 31–32 Google Scholar.

⁵³ Sunstein, , Radicals in Robes (n 23) 31–32 Google Scholar.

⁵⁴ Sunstein, , Radicals in Robes (n 23) 50 ffGoogle Scholar. In Sunstein’s depiction, ‘minimalism’ has a dimension of incrementalism that ‘majoritarianism’ lacks.

⁵⁵ See, eg, Fleming, JE, ‘Constructing the Substantive Constitution’ (1993) 72 Texas Law Review 211 Google Scholar.

⁵⁶ Ibid, 213. Fleming sees Sunstein’s minimalism as a sophisticated form of process-thinking (216–17 ff).

⁵⁷ Fleming, , ‘Constructing the Substantive Constitution’ (n 55) 213 Google Scholar (‘The substance that [process thinking and originalism] are said to flee is not only substantive liberties …, but also substantive political theory in interpreting the Constitution’).

⁵⁸ Fleming, , ‘Constructing the Substantive Constitution’ (n 55) 213 Google Scholar. Fleming notes that Dworkin’s famous article the ‘Forum of Principle’ was originally entitled ‘The Flight from Substance’.

⁵⁹ See also Tribe, LH, ‘The Puzzling Persistence of Process-Based Constitutional Theories’ (1980) 89 Yale Law Journal 1063 CrossRefGoogle Scholar.

⁶⁰ Fleming, , Securing Constitutional Democracy (n 23) 211 Google Scholar.

⁶¹ Fleming, , Securing Constitutional Democracy (n 23) 227 Google Scholar.

⁶² Fleming, JE, ‘The Incredible Shrinking Constitutional Theory: From the Partial Constitution to the Minimal Constitution’ (2007) 75 Fordham Law Review 2888 Google Scholar. For other references to Ely’s work as ‘process-perfecting’ and for a contrast with ‘judgments about substantive issues’, see Tribe, , ‘The Puzzling Persistence of Process-Based Constitutional Theories’ (n 59) 1063–64Google Scholar.

⁶³ Fleming, , Securing Constitutional Democracy (n 23) 6 Google Scholar.

⁶⁴ Fleming, , Securing Constitutional Democracy (n 23) 230 Google Scholar. On ‘meta-teleology’, see Lasser, M, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004) 288 Google Scholar.

⁶⁵ Dworkin, , Law’s Empire (n 23) pp vii Google Scholar and 230 ff; Fleming, , ‘The Incredible Shrinking Constitutional Theory’ (n 62) 2889 Google Scholar (calling this ‘interpretive perfectionism’); Greene, AS, ‘The Fit Dimension’ (2007) 75 Fordham Law Review 2922 Google Scholar (calling this ‘splitting the difference’ between ‘fit’ and ‘justification’). Dworkin’s work is, of course, heavily reliant on perfectionist imagery, from his fictional omniscient judge Hercules, to the—often maligned—idea of a ‘single right answer’.

⁶⁶ Fleming, , ‘The Incredible Shrinking Constitutional Theory’ (n 62) 2890 Google Scholar (calling this ‘“taking rights seriously” liberalism’).

⁶⁷ Eg Sunstein, CR, ‘Beyond Judicial Minimalism’ (2008) 43 Tulsa Law Review 825 Google Scholar (referring to minimalism as protective of ‘space for self-governance’).

⁶⁸ This dimension appears to be particularly important in the German version of perfectionist legal thought outlined earlier.

⁶⁹ It is clear that tensions could easily arise between these two versions of ‘comprehensive-judicial-remedies’ perfectionism and ‘comprehensive-constitutional-obligations perfectionism’. This is just one example of the tensions inherent in the perfectionist style.

⁷⁰ Scalia, A, ‘The Rule of Law as a Law of Rules’ (1989) 56 University of Chicago Law Review 1178 CrossRefGoogle Scholar.

⁷¹ There are, of course, notable exceptions. See recently, eg, Gerards, JH, ‘Pluralism, Deference, and the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 118 CrossRefGoogle Scholar ff, and C Barnard, ‘A Proportionate Response to Proportionality in the Field of Collective Action’ (2012) European Law Review 117.

⁷² See, eg, on horizontal effect: Case C-36/74 Walrave & Koch [1976] ECR 1405, para 17: ‘The abolition as between Member States of obstacles to freedom of movement for persons and to freedom to provide services, which are fundamental objectives of the Community … would be compromised if …’) (emphasis added). Schepel ( Schepel, H, ‘Constitutionalising the Market, Marketising the Constitution, and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law’ (2012) 18 European Law Journal, 183)CrossRefGoogle Scholar notes: ‘The Court repeats … these paragraphs so often that it must be assumed to amount to more than a whim’. See also Everson, and Eisner, , Making of a European Constitution (n 5) 53 Google Scholar (describing, in addition to the ‘effet utile ‘ argument, ‘effet nécessaire ‘ reasoning as ‘the extension of teleological reasoning beyond the securing of the legislative intent that lurks behind individual provisions of positive law’).

⁷³ Schmid, CU, ‘From Effet Utile to Effet Neoliberal’ in Nickel, R, Conflict of Laws and Laws of Conflict in Europe and Beyond (Antwerp, Intersentia, 2010) 296 Google Scholar. The German Federal Constitutional Court was famously critical of precisely this dimension of Court of Justice reasoning, in its Maastricht decision: ‘Whereas a dynamic expansion of the existing Treaties has so far been supported on the basis of […] Treaty interpretation as allowing maximum exploitation of Community powers (“effet utile”) […], in future it will have to be noted …’. See [1994] 69(2) Common Market Law Reports 105.

⁷⁴ See initially ECHR Tyrer v United Kingdom, Series A No 26 [1978], para 31.

⁷⁵ See initially ECHR Marckx v Belgium, Series A No 31 [1979], para 31, and the dissenting opinion of Judge Sir Gerald Fitzmaurice, para 7 ff.

⁷⁶ Gerards, , ‘Pluralism, Deference, and the Margin of Appreciation Doctrine’ (n 71) 118 Google Scholar ff.

⁷⁷ See, eg, Hesselink, MW, ‘A Toolbox for European Judges’ (2010) 17 European Law Journal 452 Google Scholar.

⁷⁸ Lasser, Judicial Deliberations (n 64).

⁷⁹ Amar, AR, The Bill of Rights: Creation and Reconstruction (New Haven, Conn, Yale University Press, 2000)Google Scholar; Ely, JH, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass, Harvard University Press, 1980) 12 Google Scholar. Ely also uses the wonderful Jazz metaphor of ‘“vertical” approaches that insist only on compatibility with the particular chord being played at the time’, as opposed to ‘horizontal’ approaches, that look to melody. He writes: ‘the Constitution quite often—and quite intentionally, I think …—gives us nothing but chords’). Ely, JH, ‘Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different From Legislatures’ (1991) 77 Virginia Law Review 837 CrossRefGoogle Scholar.

⁸⁰ Amar, AR, ‘Intratextualism’ (1999) 112 Harvard Law Review 788 CrossRefGoogle Scholar.

⁸¹ Ibid, 748.

⁸² Vermeule, A and Young, E, ‘Hercules, Herbert, and Amar: The Trouble with Intratextualism’ (2000) 113 Harvard Law Review 730 CrossRefGoogle Scholar.

⁸³ Ibid 730.

⁸⁴ Vermeule, and Young, , ‘Hercules, Herbert, and Amar’ (n 82) 732 Google Scholar (‘Intratextualism contains a pervasive, if only partially articulated, assumption that the Constitution is a fully coherent document’). For an explicit invocation of Dworkin in support of an approach to constitutional legal reasoning in the European context, see Kumm, M, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty’ (2005) 11 European Law Journal 286 CrossRefGoogle Scholar.

⁸⁵ Cf Schauer, F, ‘The Second-Best First Amendment’ (1989) 31 William & Mary Law Review 1 Google Scholar.

⁸⁶ Kramer, LD, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford, Oxford University Press, 2004)Google Scholar; Tushnet, MV, Taking the Constitution Away from the Courts (Princeton, NJ, Princeton University Press, 1999)Google Scholar.

⁸⁷ Sager, LG, Justice in Plainclothes: A Theory of American Constitutional Practice (Yale University Press, 2006) 89, 102Google Scholar; Fleming, JE, ‘Fidelity to Our Imperfect Constitution’ (1997) 65 Fordham Law Review 1343 Google Scholar; Sager, LG, ‘Fair Measure: The Legal Status of Underenforced Constitutional Norms’ (1978) 91 Harvard Law Review 1213 CrossRefGoogle Scholar:

It is part of the intellectual fabric of constitutional law … that there is an important distinction between a statement which describes an ideal which is embodied in the Constitution and a statement which attempts to translate such an idea into a workable standard for decision of concrete issues.

⁸⁸ See, eg, Solanke, I, ‘Stop the ECJ? An Empirical Analysis of Activism at the Court’ (2011) 17 European Law Journal 766 CrossRefGoogle Scholar (‘the CJ as a whole continues to be described as an inherently “constructionist court that wants to advance the frontiers of European competence” on all occasions’).

⁸⁹ Everson, and Eisner, , Making of a European Constitution (n 5) 52, 137 ffGoogle Scholar.

⁹⁰ Fallon, RH, ‘Implementing the Constitution’ (1997) 111 Harvard Law Review 60 Google Scholar.

⁹¹ Ibid, 57.

⁹² USSC Central Hudson Gas & Electric Corp. v Public Serice Commission [1980] 447 US 557, 566.

⁹³ Another (in)famous example is the well-known ‘Miranda’ warning arresting officers are constitutionally obliged to give criminal suspects. Here again, it is not seriously maintained that the phrases to be read out—‘You have the right to remain silent’, etc—follow from the wording of the relevant constitutional provision by way of a process of interpretation. But it is thought, at least by the ruling’s advocates, that this type of prophylactic statement is a useful way of implementing an important constitutional safeguard. For an extended critique of the way in which the Supreme Court’s ‘formulae’ diverge from constitutional text, see Nagel, RF, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley, University of California Press, 1989)Google Scholar.

⁹⁴ See, eg, Maduro, M, We The Court (Oxford, Hart Publishing, 1998) 20 ffGoogle Scholar.

⁹⁵ American multi-part tests are typically elaborated under extensive reference to earlier case law, to such an extent that observers sometimes complain that any link back to constitutional text is lost. Broader differences between the civil and common law traditions (eg the judge as mere ‘mouthpiece’ vs. the judge as maker of law) are likely to be relevant here as well.

⁹⁶ Case C-267/91 Keck [1993] ECR I 6097. It is noteworthy that in this instance, where the Court is in some sense creating implementing doctrine rather than simply interpreting, it has swiftly come under (perfectionist!) pressure to move back towards an approach that is thought to reflect more directly and precisely the meaning of the Treaty provision and to enhance its effectiveness. See notably the Opinion of Advocate General Jacobs in Case C-412/93 Leclerc-Siplec [1995] ECR I 179.

⁹⁷ Eg Tribe, LH, Constitutional Choices (Cambridge, Mass, Harvard University Press, 1985) 220 Google Scholar (calling American first amendment doctrine a ‘patchwork quilt of exceptions’).

⁹⁸ See, generally: RH Fallon, ‘Implementing the Constitution’ (n 90); Fried, C, ‘Types’ (1997) 14 Constitutional Commentary 55 Google Scholar. There are many examples, especially in the first amendment context (eg Stone, GR, ‘Content-Neutral Restrictions’ (1987) 54 University of Chicago Law Review 46 CrossRefGoogle Scholar) and the constitutional protection of property (eg Sullivan, KM, ‘The Justices of Rules and Standards’ (1992) 106 Harvard Law Review, 51 Google Scholar: ‘Recent regulatory takings law is an amalgam of per se rules and multi-factored balancing tests’).

⁹⁹ Fallon, ‘Implementing the Constitution’ (n 90).

¹⁰⁰ Again: differences between common law (‘problem solving’) and civil law (‘system building’) traditions are certainly relevant here. But there seems to be more involved. For example: European-style adjudication often appears to strive for congruence with the dictates of practical reason, for example in its proportionality assessments, as this is seen to enhance the legitimacy of judicial reasoning. US-style adjudication, by contrast, often appears to go out of its way to emphasise the difference between ‘mere’ practical reason and the more specifically ‘legal’ reasoning that is appropriately the province of the judiciary. Maintaining a dense, technical, web of partial and overlapping ‘tests’ is one way of emphasising this distinctiveness of legal reasoning.

¹⁰¹ Cf, A Scalia, ‘The Rule of Law as a Law of Rules’ (1989) 1177.

¹⁰² Examples are discussed in C Fried, ‘Types’ (n 98) 60 ff.

¹⁰³ This question, of the relative tolerance for rule following even in the face of ‘wrong’ answers, could be an exceptionally fruitful area for comparative empirical research, not just among legal elites, but also among the wider population.

¹⁰⁴ Eg Conway, G, ‘Levels of Generality in the Legal Reasoning of the European Court of Justice’ (2008) 14 European Law Journal 800 CrossRefGoogle Scholar (with references).

¹⁰⁵ Deirdre Curtin, in the early 1990s did observe a trend towards ‘minimalism’ in the Court’s case law, ‘in sharp contrast with the activism of the Court during the previous decades’ ( Curtin, D, ‘The Province of Government: Delimiting the Direct Effect of Directives in the Common Law Context’ (1990) 15 European Law Review 195 Google Scholar, citing former Advocate General Koopmans). The present chapter, however, suggests that (a) more recent case law—in the free movement areas, on citizenship, etc—does not fit with this observation, even if it were accurate at the time, and (b) that it is telling that this characterisation was formulated in the context of the ‘horizontal effect for directives’ discussion; one of the famous, but relatively rare, areas of reticence in the Court’s case law.

¹⁰⁶ Eg Case C-110/05 Commission v Italy (motorcycle trailers) [2009] ECR I 519.

¹⁰⁷ It should be recalled that strictly speaking, all this article has done is make the argument that European legalism is ‘perfectionist’ on American definitions of ‘perfectionism’. For reasons explained in Section I.B, above, a detailed analysis of European indigenous perfectionism has not been carried out. Further study of this indigenous perfectionism—either on a European level, or at its origins in the legal orders of one or more Member States—may reveal important differences with the ‘American’ understanding. To give one preliminary example: It seems clear that a ‘German’ form of perfectionism would place much more emphasis on ideas of law as a ‘system’ than does the ‘American’ version. For an overview of the importance of the concept of ‘the system’ in German legal thought, see Canaris, CW, Systemdenken und Systembegriff in der Jurisprudenz (Berlin, Duncker & Humblot, 1969)Google Scholar.

¹⁰⁸ Cases C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP [2007] ECR I 10779 (Grand Chamber) and C-341/05 Laval un Partneri v Svenska Byggnadsarbetareförbundet [2007] ECR I 11 767 (Grand Chamber).

¹⁰⁹ See, eg, CU Schmid, ‘From Effet Utile to Effect Neoliberal’ (n 73) (even arguing for the application of German-style ‘praktische Konkordanz’, on the perfectionist nature of which see above (n 17); C Barnard, ‘A Proportionate Response to Proportionality’ (n 71).