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The Passivity of Law - Competence and Constitution in the European Court of Justice (Hardcover, 2011 ed.)
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The Passivity of Law - Competence and Constitution in the European Court of Justice (Hardcover, 2011 ed.)
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At the heart of this book, a question: what to make of the creeping
competences of the EU and of the role the European Court of Justice
plays in this respect? Taking the implied powers doctrine as its
starting point, the hypothesis is that it shows what is ultimately
at stake in the concept of legal competence: the problem of
creation in law, or the relationship between constituent and
constituted power. By rethinking this relationship, a new
conceptual framework to make sense of creeping competences is
designed. For this, the work of Maurice Merleau-Ponty is used.
Tracing back the philosophical roots of creation, legal
constitution is understood as constitution in passivity. This leads
to a whole new interpretation of the relationship between law and
politics, rule following, authority, competences and European
integration. From this perspective specific chapters in the case
law of the European Court of Justice are reread and the logic
behind the competence creep is unmasked. new back cover copy:
Europe's constitutional journey has not been a smooth one, and a
better division and definition of competence in the European Union
is a key issue that needs to be addressed. How can the division of
competence be made more transparent? Does there need to be a
reorganization of competence? How can it be ensured that the
redefined division of competence will not lead to a creeping
expansion of the competence of the Union or to encroachment upon
the exclusive areas of competence of the Member States and, where
there is provision, regions? And how can it be ensured that the
European dynamic does not come to a halt? Indeed, has the creeping
expansion of the competence of the Union already come to a halt?
These are the questions this book explores. The Passivity of Law:
Competence and Constitution in the European Court of Justice opens
with a legal account of competence creep, including the role that
the European Court of Justice plays in it and a sketch of the
present division of competences and the main principles regulating
it. It then discusses the relationship between constituent power
and constituted or constitutional power from the viewpoint of the
history of constitutional history before offering an alternative
theory of their relationship, known as "chiastic theory," which is
based on the philosophical investigations of Merleau-Ponty. It
details how chiastic theory can be used to make sense of the
Court's role in the competence creep in general and the doctrine of
implied powers in particular, and it utilizes several case studies
concerning competences to sustain this claim. Aimed at researchers
and practitioners in Philosophy, Phenomenology, Political Science,
the Social Sciences and numerous fields of law, this monograph is a
seminal work in the evolving theory and practice of EU law.
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