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Ferrer Beltrán, J. Mora, M. (Eds.) (2006). Law, Politics, and Morality: European Perspectives II. On Knowledge and Adjudication of National and European Law. Duncker & Humblot. https://doi.org/10.3790/978-3-428-50945-4
; Ferrer Beltrán, Jordi and Mora, Maribel Narvaéz. Law, Politics, and Morality: European Perspectives II: On Knowledge and Adjudication of National and European Law. Duncker & Humblot, 2006. Book. https://doi.org/10.3790/978-3-428-50945-4
Ferrer Beltrán, J, Mora, M (eds.) (2006): Law, Politics, and Morality: European Perspectives II: On Knowledge and Adjudication of National and European Law, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-50945-4

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Law, Politics, and Morality: European Perspectives II

On Knowledge and Adjudication of National and European Law

Editors: Ferrer Beltrán, Jordi | Mora, Maribel Narvaéz

Schriften zur Rechtstheorie, Vol. 215/II

(2006)

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Abstract

Teaching and study of law is based on the premises of formal dogma. Discussion centres on what the law says, and less on the Instruments enabling its application, such as legal argumentation and reasoning.

The approach to the new legal and institutional challenges facing the European Union is not immune to this problem. Little public attention is paid to actual law emanating from EU institutions, and even less to its application. However, at least three issues of vital importance can easily be seen to originate in this field: (1) Does legal harmonisation among EU countries also mean harmonisation of criteria and forms of justification of judicial reasoning? (2) What is the relationship between each country's internal laws and European law at the application stage? And (3) what is the relationship between the application of law by European-level legal bodies and national bodies, which may, for example, assume differing levels of protection of individual rights?

These and other questions concerning application of the law in the European Union were the objective of a European congress, The Judiciary and its Role in the European Construction Process, held in Girona, Spain, from 14 to 16 November 2002. The congress was funded by the European Commission via the Human Potential Programme within the European Community's 5th Framework Programme. It was part of the PhD Euroconferences in Legal Philosophy: Current Challenges to the European Legal Thought project. This book brings together the results of that congress, yet cannot be termed Proceedings, since the papers presented at the congress were later modified by the authors in light of the discussion.

Table of Contents

Section Title Page Action Price
Contents 5
Introduction 7
Isabel Turégano Mansilla: Constitution and Democracy in the European Construction Process. Regarding Some Reflections by Jürgen Habermas 11
1. Introduction 11
2. European Constitution and Constituent Power 13
3. Democracy and Rights 17
4. Constitution and Citizenship 19
5. European Constitution and Constitutional Jurisdiction 21
References 26
Giorgio Maniaci: The Role of Rationality in Judicial Argumentation 29
1. Introduction 29
2. How and Why Normative Statements Should Be ‘Objectively Founded’ 30
3. The Sense and the Limits of a Rational Argumentative Procedure 36
4. The Indeterminacy’s Objection 43
5. Rational Discourse and Judicial Argumentation 47
6. Conclusion 52
References 56
Ofer Raban: Legislation, Adjudication, and Justification 59
1. Legislation 59
1.1. The Principle of Public Justification 59
1.2. The Relation Between the Category and the Treatment 62
1.3. Arbitrary Distinctions? 63
1.4. Recharacterizing the Problem with Checkerboard Statutes 64
1.5. Recognizing Justifications 65
1.6. Is all this Significant? 68
2. Legal Interpretation 70
2.1. Public Justification, Legal Interpretation, and Contemporary Legal Positivism 70
2.3. Legislative Intention 72
3. Conclusion 75
References 76
Véronique Champeil-Desplats: Legal Reasoning and Plurality of Values: Axio-Teleological Conflicts of Norms 77
1. The Characteristics of Axio-Teleological Conflicts 78
2. Two Models of Resolution of Axio-Teleological Conflicts 81
2.1. The Exclusive Normative Base Model 81
2.2. The Plurality of the Normative Bases Model 83
3. The Choice of a Mode of Resolution of Conflicts and the Exercise of Normative Competences 85
3.1. Reasons for the Choice: Between Discretionary Appreciation and Constraint 85
3.2. Effects of the Choice: Between a Position of Principle and the Reign of the Circumstances 87
References 87
Isabel Lifante Vidal: Interpretation and Judicial Discretion 89
1. Introduction 89
2. Usual Approaches to the Phenomenon of Discretion 93
2.1. The Meaning of Discretion 93
2.1.1. The Choice among Different Alternatives 93
2.1.2. The Absence of Applicable Legal Standards 94
2.1.3. The Absence of Reviewability or the Ultimate Character of the Decision 95
2.2. The Origin of Discretion 95
3. A Few Conceptual Points 97
3.1. Discretion as “Freedom” 97
3.2. The Indeterminacy of Law 100
3.3. Power and Discretion 102
3.4. Summing up: Two Different Phenomena under the Heading “Discretion” 104
4. Discretionary Powers 106
References 110
Gema Marcilla Córdoba: Iura Novit Curia, Law Crisis, and the European Building Process 115
1. The Aphorism Iura Novit Curia 115
1.1. Normative Status 115
1.2. Meaning and Foundation of the Presumption “The Court Knows the Law” 117
2. The Ideological Function of the Principle Iura Novit Curia: From the “Mechanistic” Thesis of Interpretation and Application of Law to the Theory of “Discretionality” 117
3. Legal Knowledge, Rule of Law and the Theory of Legal Argumentation 119
4. Law Crisis, Normative Inflation and European Building Process 122
5. The Quality of Laws and Legislative Techniques 124
References 126
Giulio Itzcovich: Sovereignty, Legal Pluralism, and Fundamental Rights. Italian Jurisprudence and European Integration (1964–1973) 131
1. Introduction – National Legal Communities and European Integration 131
2. Costa – Exegesis of Article 11 of the Constitution 135
3. Acciaierie S. Michele 138
3.1. Pluralism as Distinguished from Dualism 138
3.2. Counter-limits 143
4. Frontini – The Difficulties of the Dogmatic Approach 145
5. Conclusions – Toward a Counter-limits Doctrine 147
References 150
Josh Holmes: Human Rights Protection in European Community Law: The Problem of Standards 157
1. A Practical Account of the Problem of Standards 158
1.1. Community Rights Review and the Systematic Requisites of the Community Legal Order 158
1.2. The Problem of Standards and the Inadequacy of a Maximalist Solution 160
1.3. Is the Problem of Standards Mundane? 162
2. From Practical Challenge to Constitutional Dilemma: Reformulating the Problem of Standards 163
2.1. The Place of Rights in the National Constitutional Hierarchy of Norms 163
2.2. Rights and the Demarcation of Social and Political Identity Between European States: Weiler’s Formulation of the Problem of Standards 164
2.3. The Consequential Heightening of Tension Around the Problem of Standards 167
3. Reassessing the Problem of Standards 167
3.1. Reassessing the Link Between National Socio-political Identity and Legal Rights Protections 167
3.2. The Links Between National Rights Review and the Community Legal Order in the European History of Ideas 169
3.3. European Legal Pluralism and the Fluidity of Fundamental Boundaries 170
4. Conclusion: Negotiating the Problem of Standards 171
References 173
Jordi Ferrer Beltrán: Right to Proof and Rationality of Judicial Decisions 175
1. Introduction 175
2. Defining Features of the Right to Proof 177
3. The Notion of Proof in Law 180
4. Rational Justification and Application of the Law 183
5. Justification of Rules and Justification of Acts 185
References 188
Francesca Poggi: Proving Intention – Some General Remarks 191
1. Introduction 191
2. The Legal Notions of ‘Intention’ 191
3. The Ascertainment of Intention – Preliminary Remarks 198
3.1. Theoretical Possibility: In the World 201
3.2. Ideological Opportunity 208
3.3. Practical Possibility 209
4. From Facts to Intention 211
4.1. Maxims of Experience 215
4.2. The Known Fact 218
4.3. What Certainty? 218
References 219
About the Authors 223