The Legal Reasoning Of The Court Of Justice Of The Eu
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The Legal Reasoning Of The Court Of Justice Of The Eu
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Author : Gunnar Beck
language : en
Publisher: Bloomsbury Publishing
Release Date : 2013-01-21
The Legal Reasoning Of The Court Of Justice Of The Eu written by Gunnar Beck and has been published by Bloomsbury Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013-01-21 with Law categories.
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.
The Legal Reasoning Of The European Court Of Justice
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Author : Joxerramon Bengoetxea
language : en
Publisher: Oxford University Press, USA
Release Date : 1993
The Legal Reasoning Of The European Court Of Justice written by Joxerramon Bengoetxea and has been published by Oxford University Press, USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 1993 with Art categories.
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.
The Limits Of Legal Reasoning And The European Court Of Justice
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Author : Gerard Conway
language : en
Publisher: Cambridge University Press
Release Date : 2012-01-12
The Limits Of Legal Reasoning And The European Court Of Justice written by Gerard Conway and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-01-12 with Law categories.
Gerard Conway explains how judges of the ECJ should be understood as sharing the same interpretative perspective as the law-maker.
European Court Of Justice Legal Reasoning In Context
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Author : Suvi Sankari
language : en
Publisher:
Release Date : 2013
European Court Of Justice Legal Reasoning In Context written by Suvi Sankari and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with EU-ret categories.
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.
Comparative Legal Reasoning And European Law
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Author : Markku Kiikeri
language : en
Publisher: Springer Science & Business Media
Release Date : 2012-12-06
Comparative Legal Reasoning And European Law written by Markku Kiikeri and has been published by Springer Science & Business Media this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-12-06 with Philosophy categories.
Comparative Legal Reasoning and European Law deals with the use of comparative law in European legal adjudication. It describes the different forms of the use of comparative law in legal reasoning, argumentation and justification in several national legal orders and in European level legal institutions. The book begins with an inquiry into the nature of comparative law as a legal source. After the description of the empirical study it ends to the general theory of European law and several hard cases of European law are examined. The book is intended for students and researchers in European law but it also contains aspects to be taken into account in the practical work in European legal orders and legal institutions by judges and legal practitioners.
Legal Certainty In Multilingual Eu Law
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Author : Elina Paunio
language : en
Publisher: Routledge
Release Date : 2016-04-22
Legal Certainty In Multilingual Eu Law written by Elina Paunio and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-04-22 with Law categories.
How can multilingualism and legal certainty be reconciled in EU law? Despite the importance of multilingualism for the European project, it has attracted only limited attention from legal scholars. This book provides a valuable contribution to this otherwise neglected area. Whilst firmly situated within the field of EU law, the book also employs theories developed in linguistics and translation studies. More particularly, it explores the uncertainty surrounding the meaning of multilingual EU law and the impact of multilingualism on judicial reasoning at the European Court of Justice. To reconceptualize legal certainty in EU law, the book highlights the importance of transparent judicial reasoning and dialogue between courts and suggests a discursive model for adjudication at the European Court of Justice. Based on both theory and case law analysis, this interdisciplinary study is an important contribution to the field of European legal reasoning and to the study of multilingualism within EU legal scholarship.
The European Court Of Justice
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Author : Gráinne De Búrca
language : en
Publisher: Oxford University Press, USA
Release Date : 2001
The European Court Of Justice written by Gráinne De Búrca and has been published by Oxford University Press, USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 2001 with Law categories.
This collection of essays originated in a series of seminars given at the summer courses of the Academy of European Law at the European University Institute, Florence in 1999.
The Court Of Justice Of The European Union
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Author : Kate Shaw
language : en
Publisher: BRILL
Release Date : 2018-03-22
The Court Of Justice Of The European Union written by Kate Shaw and has been published by BRILL this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-03-22 with Law categories.
In the Court of Justice of the European Union, Subsidiarity and Proportionality Kate Shaw sets out how a subsidiarity and proportionality review applied to competences could be anchored by the Court of Justice in areas of shared competence.
How To Measure The Quality Of Judicial Reasoning
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Author : Mátyás Bencze
language : en
Publisher: Springer
Release Date : 2018-08-30
How To Measure The Quality Of Judicial Reasoning written by Mátyás Bencze and has been published by Springer this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-08-30 with Law categories.
This edited volume examines the very essence of the function of judges, building upon developments in the quality of justice research throughout Europe. Distinguished authors address a gap in the literature by considering the standards that individual judgments should meet, presenting both academic and practical perspectives. Readers are invited to consider such questions as: What is expected from judicial reasoning? Is there a general concept of good quality with regard to judicial reasoning? Are there any attempts being made to measure the quality of judicial reasoning? The focus here is on judges meeting the highest standards possible in adjudication and how they may be held to account for the way they reason. The contributions examine theoretical questions surrounding the measurement of the quality of judicial reasoning, practices and legal systems across Europe, and judicial reasoning in various international courts. Six legal systems in Europe are featured: England and Wales, Finland, Italy, the Czech Republic, France and Hungary as well as three non-domestic levels of court jurisdictions, including the Court of Justice of the European Union (CJEU). The depth and breadth of subject matter presented in this volume ensure its relevance for many years to come. All those with an interest in benchmarking the quality of judicial reasoning, including judges themselves, academics, students and legal practitioners, can find something of value in this book.
Precedents And Case Based Reasoning In The European Court Of Justice
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Author : Marc Jacob
language : en
Publisher: Cambridge University Press
Release Date : 2014-03-20
Precedents And Case Based Reasoning In The European Court Of Justice written by Marc Jacob and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014-03-20 with Law categories.
Marc Jacob analyses in depth the most important justificatory and decision-making tool of one of the world's most powerful courts.