Law, Politics, and Morality: European Perspectives II
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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 |