Abstract
The Maastricht Journal (‘MJ’) celebrates its 30th anniversary. At the time when the idea of creating a Maastricht Journal of European and Comparative Law was launched, law faculties in the Netherlands, probably in Europe in general, but also in Maastricht, were quite different from today. The focus at that time (around 1992) was still very much on teaching Dutch law; there was an occasional interest in comparative and international law and an increasing interest in the newly developing domain of European law. Still, most academics would publish in Dutch and the focus in research often remained on issues related to Dutch positive law.
The Maastricht Faculty of Law decided to fundamentally change the approach, as regards both research and teaching, by giving European and comparative law a more prominent place in the curriculum. A conference was organized in Maastricht in September 1991 about the common law of Europe and the future of legal education 1 and the Maastricht European Institute for Transnational Legal Research was created (METRO); one of its tasks was to explore the possibility of creating an international journal. At the time, it was doubtful whether there was a market for such a venture – it sounded like a risky exercise. The MJ is therefore greatly indebted to the late Maarten Kluwer, who, together with a consortium of other publishers, was interested in supporting a journal that would broadly focus on European and comparative law. When Maarten passed away, I praised his contribution to the creation of the MJ in an editorial, 2 and I do this again as what now seems obvious – the relevance of European and comparative law – was absolutely not obvious at the time.
During the initial talks the editorial board had with the consortium of publishers, the latter stressed a couple of issues: (1) they wanted to avoid the MJ simply being filled with ‘Maastricht-only’ publications; even though the name would refer to Maastricht University, it was important for the publishers that the journal would also become an attractive outlet for academics and practitioners not related to Maastricht University; (2) a system of double-blind peer review had to guarantee a high quality (again, that was not obvious at all since, at that time, peer review for most law journals, certainly in the Netherlands, did not exist); (3) it was important to have a balance of publications related to European and comparative law; and (4) the journal would have to obtain an important place in the academic market, that is, be well-cited and respected, not only by other academics, but also by courts and policymakers.
Another notable difference from the time when the MJ was created is that legal research, even when it was international, European or comparative, used to be of a theoretical or doctrinal nature, and rarely ever empirical. That has completely changed with the ‘empirical revolution’ in European legal scholarship in general, but in the Netherlands in particular. A book on civilology was published and, 3 several years later, an encyclopaedia on empirical legal scholarship in the Netherlands saw the light. 4 As empirical legal studies are apparently en vogue, it seems anno 2024 to be bon ton to reflect on whether the MJ was able to achieve some of its goals by referring to data (with some help) 5 to acquire some information on, for example, the most cited articles in the MJ and on the ranking of the MJ compared to other journals. Here it comes:
There are more than 26 articles published in the MJ with more than 50 citations. The articles with the highest citations are:
- P. Legrand, ‘The Impossibility of “Legal Transplants”’, 4(2) MJ (1997), p. 111 ⇨ - G. de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’, 20 MJ (2013), p.168 ⇨ - E. Fisher, ‘Precaution, Precaution Everywhere: Developing a “Common Understanding” of the Precautionary Principle in the European Community’, 9 MJ (2002), p. 7 ⇨ - B. de Witte, ‘Sovereignty and European Integration: The Weight of Legal Tradition’, 2 MJ (1995), p. 145 ⇨ - E. Maitre-Ekern & C. Dalhammar, ‘Towards a Hierarchy of Consumption Behaviour in the Circular Economy’, 26 MJ (2019), p. 394 ⇨ - R. Bergh van den, ‘Subsidiarity as an Economic Demarcation Principle and the Emergence of European Private Law’, 5 MJ (1998), p. 129 ⇨
Many of the highly cited articles either deal with the fundamental issue of the possibility to create integration of law via European Directives (Legrand and Van den Bergh) or with the EU Charter of Fundamental Rights (de Búrca) and the relevance of legal tradition within the European integration process (De Witte). The fact that these articles are highly cited shows that the MJ has been able to contribute to an important extent to the academic debate concerning legal integration in the EU. Articles published by young scholars (like M. Bonelli, ‘The Taricco Saga and the Consolidation of Judicial Dialogue in the European Union’, 25 MJ (2018), p. 357) were also well appreciated, as evidenced by its 50 citations.
It is more difficult to assess the ranking of the MJ compared to other journals, as the indicators in that respect are not very reliable. The ranking of the MJ in Google Scholar in the field of European law in 2023 was #10, whereas in 2021 the MJ ranked #18 in the field of international law journals. 7 An evolution of the rank of the MJ based on the SCImago Journal Rank is as follows: 8
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Whereas citation indexes are for a variety of reasons increasingly criticized, it still provides at least some indication (for better or for worse) of the academic relevance of the work published in MJ. Another original goal at the creation of the MJ was to be relevant for policymakers and more particularly for the judiciary. MJ articles have been cited 41 times in opinions of Advocates General before the CJEU, where, interestingly, the number of citations to the MJ have increased over the years:
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Occasionally, the European Court on Human Rights Grand Chamber also cited the MJ (more particularly the article by J. Gerards, ‘Advisory Opinions, Preliminary Rulings and the New Protocol No. 16 to the European Convention of Human Rights: A Comparative and Critical Appraisal’, 21 MJ (2014), p. 630). MJ articles are also cited by national courts. That is obviously the case for the Dutch courts, as can be witnessed on Rechtspraak.nl, also the German Bundesverfassungsgericht referred to an article published in the MJ (specifically A. Mooij, ‘The Weiss Judgment: The Court's Further Clarification of the ECB's Legal Framework: Case C-493/17 Weiss and others, EU:C:2018:1000’, 26 MJ (2019), p. 449).
Finally, there is also data on the origin of the authors. Just looking at the Netherlands, most authors are indeed linked to Maastricht University (146 publications), but there is an almost equally large number of publications from other Dutch universities. The highest numbers of publications from other Dutch universities originate from Utrecht University (30), Tilburg University (21), the University of Amsterdam (19) and the Erasmus University Rotterdam (16):
Most authors come from the Netherlands (273), but also from Belgium (70), Italy (52), Finland (39) and Germany (38):
Even though most authors come from EU Member States, there are also authors from third countries, although the table is slightly tricky: the UK obviously leads the list, but at a time it was not a third country:
Several authors published more than one article in the MJ. The top three consists of Maastricht scholars, with Phedon Nicolaides having 17 publications in the MJ, Aalt-Willem Heringa and Anne Pieter van der Mei having 11, followed closely by Jaakko Husa (University of Helsinki in Finland) with 9 publications in the MJ (to which a tenth can be added, included in this issue).
It is difficult to assess the division of articles between European and comparative law. Even though a majority might focus on European law, the overview of most cited articles also contains many comparative articles as well. Just to mention the article by W. Twining, ‘Globalisation and Comparative Law’, 6 MJ (1999), p. 217 with 84 citations and J. Smits, ‘A European Private Law as a Mixed Legal System: Towards a Ius Commune through the Free Movement of Legal Rules’, 5 MJ (1998), p. 328, with 76 citations.
This brief overview provides some idea of the way in which the MJ has been able to achieve some of the ambitions it had at its inception 30 years ago. The high number of citations shows that articles published in the MJ are apparently appreciated by the academic peers; the fact that also Advocates General in their opinions, as well as national courts, refer to MJ articles provides evidence of real impact. Even though the MJ has certainly been able to attract authors from outside of Maastricht, the overview does show that it has, to an important extent, been an attractive outlet for Maastricht academics. And even though the editorial board has always tried to provide a balanced spread of articles between European and comparative law, the majority of the articles have focused more on European than on comparative legal issues.
At the same time, the current issue shows that there are many important issues in the domain of comparative law that are well worth examining. Comparative law scholarship has been and remains highly relevant for the debate on the role of law in the European integration process. The contributions to this special section nicely show how the method of comparative law has evolved during the 30 years of the MJ's existence. Whereas in the past the comparison was often functional, that is, examining to what extent other legal systems showed solutions that one could implement in one's own, nowadays comparative legal scholarship has gone far beyond that, for example by examining in comparative constitutional law how the particular shape of specific constitutions can contribute to promoting constitutional democracy, equally searching for a new balance between comparative constitutional law and EU law. 9 Comparative law now also pays attention to formerly unexplored topics such as identity politics, especially in relation to gender, race, religion and indigenous cultures, whereby rules concerning those issues in different countries are compared using the tools of comparative law. 10 Comparative scholarship in the area of administrative law now also increasingly pays attention to questions of changes, convergence, inspiration and influence between different legal systems, especially as far as the judicial review of administrative action is concerned. 11 Moreover, critical scholarship related to comparative law shows that a one-size-fits-all approach to comparative law is no longer possible. As a result, a wide variety of different methods of investigation and analysis are now used, which, to some extent, also reflects the global pluralism of today's world. 12 Those different ideas are reflected in the contributions contained in this special section. If the contributions have one point in common, it is that they highlight the need to adapt the method of comparative law to the changing nature of the problems with which societies are confronted today and the changing nature of the multitude of critical legal disciplines. Comparative law has now adapted to integrate with other legal domains, such as, inter alia, human rights-based approaches and (obviously) European law. It is thanks to the great adaptability of the comparative legal approach that, in the (near) future, this critical comparative legal scholarship will also be a crucial tool to reflect upon the law's ability to deal with the major societal challenges the world is facing today.
On the one hand, looking at data can be useful to critically reflect on whether a journal has been able to achieve (some of its) goals; on the other hand, it can also be an instrument of editorial policy for the future. In that respect, it can only be repeated that the MJ still has the same ambition as 30 years ago: to be a forum for high quality publications at the forefront of legal developments in the domain of European and comparative law.