The Limits of Legal Reasoning and the European Court of Justice PDF Download
Are you looking for read ebook online? Search for your book and save it on your Kindle device, PC, phones or tablets. Download The Limits of Legal Reasoning and the European Court of Justice PDF full book. Access full book title The Limits of Legal Reasoning and the European Court of Justice by Gerard Conway. Download full books in PDF and EPUB format.
Author: Gerard Conway
Publisher:
ISBN: 9781139217576
Category : Judicial process
Languages : en
Pages : 319
Get Book Here
Book Description
Gerard Conway explains how judges of the ECJ should be understood as sharing the same interpretative perspective as the law-maker.
Author: Gerard Conway
Publisher:
ISBN: 9781139214490
Category : Judicial process
Languages : en
Pages : 319
Get Book Here
Book Description
Gerard Conway explains how judges of the ECJ should be understood as sharing the same interpretative perspective as the law-maker.
Author:
Publisher:
ISBN:
Category : Law
Languages : en
Pages : 304
Get Book Here
Book Description
Author: Gerard Conway
Publisher: Cambridge University Press
ISBN: 1139504614
Category : Law
Languages : en
Pages : 347
Get Book Here
Book Description
The European Court of Justice is widely acknowledged to have played a fundamental role in developing the constitutional law of the EU, having been the first to establish such key doctrines as direct effect, supremacy and parallelism in external relations. Traditionally, EU scholarship has praised the role of the ECJ, with more critical perspectives being given little voice in mainstream EU studies. From the standpoint of legal reasoning, Gerard Conway offers the first sustained critical assessment of how the ECJ engages in its function and offers a new argument as to how it should engage in legal reasoning. He also explains how different approaches to legal reasoning can fundamentally change the outcome of case law and how the constitutional values of the EU justify a different approach to the dominant method of the ECJ.
Author: Joxerramon Bengoetxea
Publisher: Oxford University Press, USA
ISBN:
Category : Art
Languages : en
Pages : 398
Get Book Here
Book Description
Can a jurisprudential approach help lawyers and legal philosophers to understand the sources, organization, and main features of European Community (EC) law? How does the European Court of Justice interpret EC law and justify its decisions? This study examines these questions and related issues--analyzing EC law and the decision-making process of the European Court of Justice from a legal theoretical perspective. The justification of legal decisions is a crucial issue in legal and political theory, with courts achieving legitimation through their practice of justification. This study also assesses the justificatory practice of the European Court of Justice and how its jurisprudential approach contributes to an understanding of European integration.
Author: Erik Claes
Publisher: Springer Science & Business Media
ISBN: 3540798560
Category : Law
Languages : en
Pages : 540
Get Book Here
Book Description
Many legal experts no longer share an unbounded trust in the potential of law to govern society efficiently and responsibly. They often experience the 'limits of the law', as they are confronted with striking inadequacies in their legal toolbox, with inner inconsistencies of the law, with problems of enforcement and obedience, and with undesired side-effects, and so on. The contributors to this book engage in the challenging task of making sense of this experience. Against the background of broader cultural transformations (such as globalisation, new technologies, individualism and cultural diversity), they revisit a wide range of areas of the law and map different types of limits in relation to some basic functions and characteristics of the law. Additionally, they offer a set of strategies to manage justifiably law's limits, such as dedramatising law's limits, conceptual refinement ('constructivism'), striking the right balance between different functions of the law, seeking for complementarity between law and other social practices.
Author: Gunnar Beck
Publisher: Bloomsbury Publishing
ISBN: 178225031X
Category : Law
Languages : en
Pages : 492
Get Book Here
Book Description
The Court of Justice of the European Union has often been characterised both as a motor of integration and a judicial law-maker. To what extent is this a fair description of the Court's jurisprudence over more than half a century? The book is divided into two parts. Part one develops a new heuristic theory of legal reasoning which argues that legal uncertainty is a pervasive and inescapable feature of primary legal material and judicial reasoning alike, which has its origin in a combination of linguistic vagueness, value pluralism and rule instability associated with precedent. Part two examines the jurisprudence of the Court of Justice of the EU against this theoretical framework. The author demonstrates that the ECJ's interpretative reasoning is best understood in terms of a tripartite approach whereby the Court justifies its decisions in terms of the cumulative weight of purposive, systemic and literal arguments. That approach is more in line with orthodox legal reasoning in other legal systems than is commonly acknowledged and differs from the approach of other higher, especially constitutional courts, more in degree than in kind. It nevertheless leaves the Court considerable discretion in determining the relative weight and ranking of the various interpretative criteria from one case to another. The Court's exercise of its discretion is best understood in terms of the constraints imposed by the accepted justificatory discourse and certain extra-legal steadying factors of legal reasoning, which include a range of political factors such as sensitivity to Member States' interests, political fashion and deference to the 'EU legislator'. In conclusion, the Court of Justice of the EU has used the flexibility inherent in its interpretative approach and the choice it usually enjoys in determining the relative weight and order of the interpretative criteria at its disposal, to resolve legal uncertainty in the EU primary legal materials in a broadly communautaire fashion subject, however, to i) regard to the political, constitutional and budgetary sensitivities of Member States, ii) depending on the constraints and extent of interpretative manoeuvre afforded by the degree of linguistic vagueness of the provisions in question, the relative status of and degree of potential conflict between the applicable norms, and the range and clarity of the interpretative topoi available to resolve first-order legal uncertainty, and, finally, iii) bearing in mind the largely unpredictable personal element in all adjudication. Only in exceptional cases which the Court perceives to go to the heart of the integration process and threaten its acquis communautaire, is the Court of Justice likely not to feel constrained by either the wording of the norms in issue or by the ordinary conventions of interpretative argumentation, and to adopt a strongly communautaire position, if need be in disregard of what the written laws says but subject to the proviso that the Court is assured of the express or tacit approval or acquiescence of national governments and courts.
Author: Suvi Sankari
Publisher:
ISBN: 9789089521170
Category : EU-ret
Languages : en
Pages : 0
Get Book Here
Book Description
The task of the European Court of Justice is to ensure that the law is observed in interpreting and applying treaties. This duty is carried out in a transnational constitutional environment where interpretation and application are, to a large extent, divorced from each other. An array of approaches to assessing the Court's work already exists. The distinct underlying assumptions of each perspective affect how Court practice is interpreted and evaluated. In terms of legal interpretation, at the one extreme would be those who subscribe to a historical-originalist - or conserving - approach, and, at the other, those subscribing to an uncritically teleological or dynamic approach, premised on furthering integration. Neither extreme necessarily reflects, in either descriptive or normative terms, a fair or realistic understanding of the Court, its work, and the outcomes of legal interpretation. Even if, in reality, the differences were more a matter of degree, developing a better balanced approach is useful. The approach advocated in this book is called Court of Justice legal reasoning. The approach is critical towards offering generalizations concerning the Court's work based on purposively chosen case law, downplaying the role of law in not only facilitating but also restraining the Court's choices, and overemphasizing teleology or integration as pre-designated and permanent explanatory factors of legal evolution. The Court of Justice legal reasoning approach is firmly anchored to actual case law analysis, instead of abstract legal theory, which ensures it does not become wholly disconnected from the everyday of courts. Moreover, the approach takes into account how the Court keeps applying its relatively conventional self-assumed criteria of legal interpretation, considers interpretations offered in preliminary rulings in their systemic and factual context, and generally views the Court as the constitutional court of a legal order. Finally, the approach builds on sincerely listening to the Court: considering the meaning of silences in reasoning, ways of restrictive interpretation, and the distinction between singular cases and lines of cases in defining the degree of universality of interpretations included in them.
Author: A. N. Parr
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
Get Book Here
Book Description
Author: Gerard Martin Conway
Publisher:
ISBN:
Category :
Languages : en
Pages :
Get Book Here
Book Description
Author: Kate Shaw
Publisher: BRILL
ISBN: 9004523979
Category : Law
Languages : en
Pages : 196
Get Book Here
Book Description
In an era of Covid 19, The Court of Justice of the European Union explores how the CJEU can realise its role as guardian of the EU’s rule of law and its aftermath through the anchoring of a structured rule of law review of the public health derogation.
