The limits of legal reasoning and the European Court of Justice
"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 prai...
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| Format: | Electronic eBook |
| Language: | English |
| Imprint: | Cambridge, UK ; New York : Cambridge University Press, 2012. |
| Series: | Cambridge studies in European law and policy
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| Subjects: | |
| Online Access: | Available in ProQuest Ebook Central - Academic Complete. |
| Summary: | "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"-- "This book seeks to offer a critical perspective on the legal reasoning of the European Court of Justice (ECJ). In particular, it focuses on the question of the limits of legal reasoning: how far creativity and freedom from constraint can go in the task of legal reasoning by the EU judiciary. This question has two aspects to it: the epistemic or descriptive possibility of conserving versus creative interpretation and the normative desirability of conserving versus creative interpretation. The argument of the book is that interpretation by the judiciary linked to the understanding or interpretation of the law-maker is both epistemically possible and normatively desirable. This conserving (or orginalist or historical) approach to interpretation coheres much better with the rule of law and democracy, the twin pillars of accepted political morality in Europe, than the relatively creative, teleological approach to interpretation that is widely recognised to be the hallmark of the ECJ"-- 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. |
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| Bibliography: | Includes bibliographical references (p. 284-309) and index. |
| ISBN: | 9780511735929 (online) 9781107660359 (online) 9781139209533 (online) 9781139214490 (online) 9781139217576 (online) 9781139220668 (online) 9781139222389 (online) 9781139224093 (online) 9781280485039 (online) |