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The Legal Reasoning of the Court of Justice of the EU (Hardcover, New)
Loot Price: R3,327
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The Legal Reasoning of the Court of Justice of the EU (Hardcover, New)
Series: Modern Studies in European Law
Expected to ship within 12 - 17 working days
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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.
General
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