Abstract
The discussion about rules and principles was re-opened and intensified in 1967 when Ronald Dworkin first published the theory of principles in his essay ‘The Model of Rules I’.1 Until his essay appeared the concept of a legal norm was, according to Siltala, commonly held to be equal to a legal rule, at least within the analytical and positivist tradition of law.2 As far as the EC law is concerned one has to bear in mind that many of the principles dealt with in the previous chapters had been designated as principles before the influential discussion on principles took place in the late 1960s. The ECJ had designated the principles from the early 1960s, namely the supremacy, direct applicability and direct effect of EC law, as principles without having analysed the choice thoroughly in the Dworkinian sense.
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References
See Dworkin 1978, pp. 14–45.
See Siltala 1998, p. 38 and Siltala 2000, p. 43.
See Lappi-Seppälä, pp. 21–37, Pöyhönen, pp. 13–79, Frände, pp. 46–56, Koskenniemi 1989, pp. 21–22,160–161 and 170–171, Nieminen 1990, pp: 27–29, Scheinin, pp. 29–48 or Jonkka, pp. 157–158 and 162–167. Not all of the listed authors have used the division of principles and rules operatively in their dissertations, though. The main features of the rule v. principles discussion were also introduced in some textbooks of that time, e.g. in Aarnio 1989, pp. 78–83, Tuori 1990, pp. 3–7 and 71–75 or in Laakso 1990, pp. 121–129.
See Tähti, pp. 69–110.
See Kelsen 1960, pp. 73–77 or Kelsen 1970, pp. 71–75.
See Atiyah - Summers, pp. 11–21.
See Siltala 2000, pp. 41–63.
See Dworkin 1978, p. 22 and comments from Siltala 2000, pp. 43–44 and Wiklund, p. 67.
See Dworkin 1978, p. 357, in which he states that his arguments are against an unrestricted utilitarianism and not in favour of a restricted one.
See Aarnio 1987, p. 161.
See Dworkin 1978, pp. vii, ix of the Introduction and p. 22 and Bentham, pp. 1–7.
Dworkin 1978, pp. xi and xiii of the Introduction. The right to equal concern and respect has been mentioned as an example of an individual right, which is fundamental in character. The fundamental right of concern and respect can even be held as a source both of the general authority of collective goals and of the special limitations on their authority that justify more particular rights. Dworkin finds that the often collective right to equality and the right to liberty, and individualism as its practical consequence, do not necessarily contradict each other.
See Kelsen 1960, pp. 73–77 and Siltala 1998, p. 37, footnote 117 or correspondingly Siltala 2000, p. 41, footnote 1. Kelsen made a distinction between Rechtsnorme or `norms’ and Rechtssätze or `norm formulations’. My translation of Rechtsatz differs from the one adopted in Kelsen 1970, p. 71 on purpose, because I find the translation “Rule of law (in a descriptive sense)” misleading and confusing. To illustrate the division he gives an example of Rechtsnorm: “Diebstahl soll bestraft werden” (`a theft ought to be punished’) and an example of Rechtsatz: “Diebstahl wird mit Gefängnis bestraft” (`a theft is punishable by imprisonment’). As Siltala points out, “if p, then Sq” is an example of a norm formulation, which gives information on the respective legal norm.
See Siltala 2000, p. 42. In the light of the Dworkinian theory of law the term `norm’ in this context refers to legal rules.
See Kelsen 1960, p. 5 and 73 or Kelsen 1970, p. 5 and 71. According to Kelsen the law commands, permits or authorizes, but it does not teach.
See Kelsen 1970, pp. 221–222 and Kelsen 1960, p. 228, in which he describes: “Die Rechtsordnung ist nicht ein System von gleichgeordneten, nebeneinanderstehenden Rechtsnormen, sondern ein Stufenbau verschiedenen Schichten von Rechtsnormen. Ihre Einheit ist durch den Zusammenhang hergestellt, der sich daraus ergibt, daß die Geltung einer Norm, die Gemäss einer anderen Norm erzeugt wurde, auf dieser anderen Norm beruht, deren Erzeugung wieder durch andere bestimmt ist; ein Regress, der letzlich in der — vorausgesetzten — Grundnorm mündet. Die — in diesem Sinne — hypothetische Grundnorm ist sohin der oberste Geltungsgrund, der die Einheit dieses Erzeugungszusammenhanges stiftet.”
See Kelsen 1970, p. 223 and the original version in Kelsen 1960, p. 229: “Dann setzt die Grundnorm — als die Verfassung im rechtslogischen Sinne — nicht nur den Akt des Verfassungsgebers, sondern auch die durch das Verhalten der der Verfassungsmäßig erzeugten Rechtsordnung unterworfenen Subjekte konstituierte Gewohnheit als rechterzeugenden Tatbestand ein.”
See Siltala 2000, p. 42.
See Husa 1999, p. 158, Klami 1990, p. 174 and Kelsen 1960, p. 19.
See Husa 1999, p. 159.
See Aarnio 1997, p. 174 and Klami 2001, pp. 321–322.
On the formulation of Grundnorm see Klami 1990, pp. 176–177 and Klami 2001, pp. 321–322.
See Searle 1964, pp. 43–58.
On the idea of social rules and conventional morality see Dworkin 1978, pp. 48–58 or Hart, pp. 117–121 about the “pathology of the legal system” and especially the example dealing with the rules of recognition in the colonies. Kelsen’s approach to law emphasizes law as a system of rules, but Dworkin’s and Hart’s approaches to law emphasize also the significance of behaviour, to put it in Klami’s finalistic terminology.
See Hart, p. 107.
See Husa 1999, pp. 161–163, Koskenniemi 1989, pp. 194–196 and Schmitt, p. 49. Husa has pointed out that the common feature of the ideas of John Austin, H.L.A. Hart and Carl Schmitt and the difference from Kelsen lies in the fact that to them the foundation of the legal system will not go back to the norm (Sollen), but to a factual phenomenon (Sein). This note does not imply that Hart had the same perception of democracy as Schmitt, who eventually was associated with the supporters of Hitler’s totalitarian regime.
See Hart, p. 110.
See Brownlie, p. 7.
See Kelsen 1952, pp. 417–418.
ibid., p. 415.
See Austin, John, `The Province of Jurisprudence Determined’, (first published in 1832) and also comments in Siltala 2001c, pp. 131, 137–138. Siltala has noted that the so-called Oxford school philosophers such as John L. Austin and Ludwig Wittgenstein influenced to the works of H.L.A. Hart and that one ought not to confuse John L. Austin to legal positivist John Austin. However, the two Austins have had an influence on Hartian philosophy of law.
See Dworkin 1978, pp. 18–19 and also pp. 48–58 concerning social rules and the distinction between concurrent and conventional morality. A community displays a concurrent morality when its members are agreed in asserting the same, or much the same, normative rule, but they do not count the fact of that agreement as an essential part of their grounds for asserting that rule. It displays a conventional morality when they do.
See Hart, pp. 79–99.
See Hart, p. 116.
See Jahkola, pp. 995–1027 and Pöysti, pp. 267–274. This problem has been discussed in the context of the protection of Communities’ financial interests, in which the EC’s competence to enact legislation in the field of criminal law has been questioned by some specialists.
See Dworkin 1978, p. 20 compared with Hart, p. 117, in which Hart states: “The assertation that a legal system exists is therefore a Janus-faced statement looking both towards the obedience by ordinary citizens and to the acceptance by officials of secondary rules as critical common standards of official behaviour.”
See Hart, pp. 127–128: “Whichever device, precedent or legislation, is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture”, and on p. 135: “The open texture of law means that there are, indeed, areas of conduct where much must be left to be developed by courts or officials striking a balance, in the light of circumstances, between competing interests which vary in weight from case to case.”
See Dworkin 1978, pp. 20–22 compared with Hart’s view of the judge’s discretion in hard cases in his postscript, p. 272: “[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete. If in such cases the judge is to reach a decision and is not, as Bentham once advocated, to disclaim jurisdiction or to refer the points not regulated by the existing law to the legislature to decide, he must exercise his discretion and make law for the case instead of merely applying already preexisting settled law. So in such legally unprovided-for or unregulated cases the judge both makes new law and applies the established law which both confers and constrains his lawmaking powers.”
See Siltala 2000, p. 9.
ibid., pp. 6–8, 209–240 and Siltala 2001c, p. 138.
See Dworkin 1978, p. 81.
See ibid, pp. 82–84.
See Mann, pp. 99–106 or Wiklund, pp. 61–66 and 221–236. In the context of EC law Mann in 1972 and Wiklund in 1997 have analysed the Hartian theory about legal decision-making in hard cases. Mann has presented especially the theories of Begriffsjurisprudence, Kelsen’s `Pure Theory of Law’ in addition to Hart’s `The Concept of Law’. Wiklund in turn has employed especially the views of Dworkin and MacCormick in the context of Hart’s legal theory.
For criticism of the judicial activity of the ECJ see Rasmussen 1986, p. 13 and the case 26/62 Van Gend en Loos (1963) ECR 1.
See Hart, p. 136.
See Cappelletti, pp. 190–198, esp. p. 192 he cites Montesquieu’s `The Spirit of the Laws’: “The judges of the nation are (…) nothing but a mouth which pronounces the words of the law”. This kind of attitude towards judicial activism seems to contradict Hart’s theory of law and Anglo-American legal culture in general.
See MacCormick-Summers 1991, pp. 501–504.
See Brownlie, pp. 3–6.
See Dworkin 1978, p. 22.
As an example of a broader viewpoint see Klami 1989, pp. 17 and 19–20, in which he describes the criticism levelled against the Kelsenian Grundnorm and Hartian `Rule of recognition’ and concludes that the law is also a matter of behaviour, beteendefenomen. This can be understood in the light of his finalistic theory of law, which is introduced more thoroughly in Klami 1980a or in English in Klami 1980b. According to Klami, law is a dualistic phenomenon, an interaction between rules and behaviour, which implies an attempt to combine positivism and realism. The core of Dworkin’s criticism seems to reflect realism at least in the sense in which Klami has used it.
See Bengoetxea 1993, p. 146.
ibid., p. 147 or Wiklund, p. 73, in which he describes the “Dworkinian” features of the judicial decision-making of the ECJ.
See Dworkin 1978, pp. 22, 82–84 and 90–96.
See Spartan Steel & Alloys Ltd. v. Martin & Co., (1973) I Q.B. 27.
See Dworkin 1978, pp. 83–86 and comments in Aarnio 1987, pp. 162–163.
See Dworkin 1978, pp. 22–28.
See Siltala 2000, p. 44.
See Dworkin 1978, p. 27 compared with Aarnio 1997, p. 179. Aarnio has used the standard `No-one may benefit from the wrong he has done’ as an example of a rule-like principle. These norms look like principles although they seem to belong to the category of rules, they are either followed or not.
See Dworkin 1978, p. 26.
See Klami 1997, p. 11.
See Siltala 2000, p. 44.
See Wittgenstein, pp. 30–31.
See Aarnio 1997, p. 175 and Siltala 2000, p. 43.
See Dworkin 1978, p. 76.
See Aarnio 1987, pp. 98–101.
See Klami 1997, p. 11.
See Alexy 1985a, p. 77 and Pöyhönen, p. 24. Pöyhönen distinguishes a difference in terminology between `conflicts of rules’ (sääntöristiriidat, Regelkonflikte) and `collisions of principles’ (periaatekollisiot, Prinzipienkollisionen).
See Dworkin 1978, p. 35.
See Siltala 2000, p. 44.
See Pöyhönen, pp. 42–43.
See Dworkin 1978, pp. 77–78, esp. p. 77: “Indeed, one of my reasons for drawing a distinction between rules and principles was just to show how rules often represent a kind of compromise amongst competing principles in this way, and that point may be lost or submerged if we speak too freely about rules conflicting with principles”.
See Siltala 2000, p. 45 and Dworkin 1978, p. 78.
See Dworkin 1978, p. 17.
ibid., pp. 36,40,43–44 and 71–72.
ibid., p. 21.
ibid., pp. 40–43.
ibid., p. 44.
ibid. pp. 59–61.
ibid., p. 40.
ibid., pp. 66–68, 126. Dworkin points out that not any particular lawyer’s theory of law provides a social rule of recognition. The test of institutional support provides no mechanical, historical or morally neutral basis for establishing one theory of law as the soundest, which makes it possible to present the test of pedigree in a broader context of political morality. Interpreted in this way, the institutional support stresses that a set of legal principles cannot be distinguished from moral or political principles.
See Siltala 2000, p. 45.
Dworkin 1978, p. 41. I consider Dworkin’s conclusion on that page to be illustrative: “At this level of abstraction, in other words, principles rather hang together than link together”.
See Dworkin 1978, p. 37.
See Wiklund, p. 68 and Dworkin 1978, pp. 279–290 and 327–330.
See Dworkin 1978, p. 44.
ibid., pp. 328–330.
ibid., p. 69.
ibid., pp. 68–71.
See Aarnio 1987, pp. 161–162 and Dworkin 1978, pp. 279–290. Dworkin describes a tie judgment, which may also be “one right answer” according to his theory.
See Dworkin 1978, p. 280.
ibid., p. 269 and a reply to criticism in p. 345, in which he points out that the rights thesis does not prohibit courts from deciding criminal or public law cases in favour of an individual and against the state on grounds that do not suppose that the individual has a right to the decision. Additionally, it does not prohibit prospective legislation by courts, if rules created for the future are not applied retrospectively to justify awards or denials in the present case.
ibid., p. 286.
ibid., pp. 105–130, 358–359, and the comments in Aarnio 1987, pp. 163–164 and Pöyhönen, p. 26.
See Dworkin 1978, pp. 126–130.
ibid., pp. 134–136.
ibid., p. 137.
ibid., p. 138.
ibid., p. 141.
ibid., pp. 143–144. Dworkin admits that the judicial activism involves a risk of tyranny. Still, he finds that the majority must be allowed to decide the limits of its power which, to my mind, refers to the Constitution in the USA in this context.
ibid., pp. 131–132. Richard Nixon was the President of the USA in 1969–74 and his policy of judicial restraint was called “strict construction” in the debates of that time.
ibid., pp. 137–140 and 184–205.
ibid., pp. 142–143. To support his constitutionalism, Dworkin referred to the case Marbury v. Madison, 1 Cranch 137, in which the United States Supreme Court first claimed the power to review legislative decisions against constitutional standards in 1803. Dworkin notices, though, that it is not clear in modern societies whether the theory of deference leads to a situation where the majority may judge its own cause.
ibid., pp. 144–147.
ibid., p. 147. He takes racial segregation as an example and points out that it is unjust to force black children to take their public education in black schools, even if a great many people will be worse off if the state adopts the measures needed to prevent this. This is an example of moral progress in his terminology.
ibid., pp. 147–149, 150–183 and Rawls, pp. 333–391. Dworkin has studied features of Rawls’ theory of law, e.g. the original position or the technique of equilibrium in questions of constitutional law and moral theory.
ibid., p. 23.
See Alexy 1985a, 87–99, esp. p. 88 in which he has stated that the Dworkinian way to divide the principles and rules is too simple (zu einfach). On the term `weak demarcation thesis’ see also Alexy 1985b, p. 15 and Aarnio 1997, pp. 174–176.
See Aarnio 1997, p. 175.
See Pöyhönen, p. 26. He has delineated a weighing up maxim (punnintamaksiimi) in this context.
ibid., p. 27 compared with Joutsamo-Aalto-Kaila-Maunu 1996, p. 22 or Joutsamo-AaltoKaila-Maunu 2000, p. 21.
See MacCormick 1978, p. 178.
See Jorgensen, pp. 46–54, esp. p. 53. One must note, however, that his criticism is mainly directed against Alf Ross’s theory of law set out in `On Law and Justice’, which was based on logical empiricism.
See Klami 1989, pp. 76–78 and an application of his theory of law in Klami 1997, p. 26, in which he states: “As for all legal arguments, the weight of a norm in a conflict situation depends on two issues: the hierarchical status of a norm and its fitness, i.e. its relationship to the facts of a case. The measure of this weight is its value-and goal-oriented, i.e. evaluative, relevance due to the instrumental nature of all law.”
See Klami 1997, p. 36.
ibid., p. 11 and p. 37 and on his idea of the levels of normativity and teleology, for example, in Klami 1989, p. 78.
See Dworkin 1978, pp. 27 and 72–73, Tähti p. 72 or Lappi-Seppälä, p. 26, footnote 13.
See Dworkin 1978, p. 27.
ibid, p. 28. Dworkin gives examples which relate to the rules containing imprecise words, e.g. reasonable, negligent, unjust or significant. He states: “Each of these terms makes the application of the rule which contains it depend to some extent on principles or policies lying beyond the rule, and in this way makes that rule itself more like a principle. But they do not quite turn the rule into a principle, because even the least confining of these terms restricts the kind of other principles or policies on which a rule depends”.
See Aarnio 1997, p. 176.
See Sartor, p. 144.
See Aarnio 1997, pp. 179–180.
ibid, p. 177 and Klami 1997, p. 36.
See Aarnio 1987, p. 96, Aarnio 1989, p. 78, Alexy 1985a, p. 75 and comments in Pöyhönen, pp. 23–29 and 37–41 and Siltala 2000, p. 47.
See Aarnio 1997, p. 175 and his reference to a non-published contribution to the Seminar `Norms, Values and Acts’ (Normen, Werte und Handlungen), Bielefeld, 26–27.4.1996, by Laporta, Francisco; Georg Henrik von Wright and the Legal Principles, Some Conjectures for Discussion.
ibid., pp. 175–176.
ibid., p. 181.
ibid., p. 183.
See Siltala 1998, p. 38 and correspondingly Siltala 2000, p. 42. Siltala has intepreted Kelsen’s deontic operator S by stating: “In legal principles, in turn, the deontic operator S signifies no more than a deficient or weak relation of imputation: `if p, then it ought to be that q, subject to be outweighed by strong enough countervailing reasons’ or `if p, then it ought to be that more or less q’. Now, the deontic operator S lays down a conditional and open-ended normative Ought in the relation between a set of legal facts and a set of legal consequences: if certain legal facts are present, then the prescribed legal consequences ought to be enforced by the judge, subject to be modified by an open-ended allusion of such axiological and/or teleological background reasons of law which are endowed with a sense of appropriateness, enjoy institutional support in society or find an adequate match with the soundest conception of political morality in society”. I consider Siltala’s term `weak relation of imputation’ to be a proper application of Kelsenian and Dworkinian theory of law.
On the discussion concerning incommensurability, see Bix, pp. 96–106.
See Peczenik 1989, pp. 307–309 and Mackie, pp. 15–49.
On Uppsalaskolan and the ideas of an empirist Axel Hägerström (1868–1939), see Klami 1990, pp. 168–172.
See Dworkin 1978, pp. 331–338.
See Peczenik 1989, pp. 305–307 and also Dworkin’s reply to criticism based on the argument of incommensurability in Dworkin 1978, pp. 359–361. Peczenik argues that Dworkin does not take account of the situation in which the reasons and the counter-arguments in a case are incommensurable.
See Aarnio 1987, pp. 164–165 and on the `no right answer thesis’ also Aarnio-AlexyPeczenik, p. 272. The study of the values guiding the judicial decision-making of the judges in multi-cultural European Community is reasonable, if the part of Dworkin’s theory relating to one right answer is not accepted as a basis for the approach to judicial decision-making.
On the `homeward trend’ see Klami 1986, pp. 55–56, Klami 1997, p. 27 and Raitio 2000a, pp. 311–312 and 317–320.
See, e.g. 29/69 Stauder v City of Ulm (1969) ECR 419, esp. p. 424, para. 3.
See MacCormick 1981, p. 128.
See MacCormick 1981, p. 129 and Wiklund, p. 71, in which he points out that Dworkin did not deny that people have different views of moral issues.
See Dworkin 1978, pp. 150–183.
See Pöyhönen, pp. 54–57 and compare his argument with Dworkin’s “rights thesis” in Dworkin 1978, pp. 90–96. One may note that even according to Dworkin the character of a political aim, its standing as a right or goal, depends upon its place and function within a single political theory. The problems to distinguish rights from goals do not seem to make Dworkin abandon the distinction between arguments of principle and arguments of policy.
See Klami 1983, p. 240, MacCormick 1978, pp. 259–264 and Alexy 1985a, p. 99.
See Tuori 1987, pp. 108–109.
See Tähti, pp. 123–125 and MacCormick 1978, p. 194. Tähti has referred to MacCormick’s opinion that judicial decision-making based on principles is to a great extent similar in common law countries than it is to civil law countries, but he has not accepted it.
See Dworkin 1978, pp. 194–196 and 214–216. Dworkin’s individualism can be illustrated, e.g. in the context of weighing individual rights in relation to some competing rights, general benefit or the case of emergency. Dworkin’s individualistic rights-based standpoint becomes evident also in the context of his presentation concerning civil disobedience.
See MacCormick 1978, pp. 262–264. MacCormick has even defended his argument with the aid of the `Oxford English Dictionary’, according to which policy refers to a course of action adopted as advantageous or expedient.
See Siltala 2000, pp. 54–55.
See Hart, pp. 259–263 as well as Siltala 2000, pp. 46–47 and p. 52.
See Riggs v. Palmer, 115 N.Y. 506,22 N.E. 188 (1889), cited in Dworkin 1978, p. 23, note 2.
See Siltala 2000, p. 46.
See Dworkin 1978, pp. 294–301.
ibid., pp. 182–183, 273–278 and 366.
See Rawls, p. 51.
See Dworkin 1978, p. 150, in which he states: “[Liberty and equality] provide, roughly, that every person must have the largest political liberty compatible with a like liberty for all, and that inequalities in power, wealth, income, and other resources must not exist except in so far as they work to the absolute benefit of the worst-off members of the society.”
ibid., p. 182, in which he sums up his idea of justice as fairness: “We may therefore say that justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.”
See Dworkin 1978, p. 155 and Rawls, p. 48.
See Dworkin 1978, p. 156: “We can expect to proceed back and forth between our immediate judgments and the structure of explanatory principles in this way, tinkering first with one side and then the other, until we arrive at what Rawls calls the state of reflective equilibrium in which we are satisfied, or as much satisfied as we can reasonably expect.”
ibid., pp. 160–163, esp. p. 162: “The constructive model insists on consistency with conviction as an independent requirement, flowing not from the assumption that these convictions are accurate reports, but from the different assumption that it is unfair for officials to act except on the basis of a general public theory that will constrain them to consistency, provide public standards for testing or debating or predicting what they do, and not allow appeals to unique institutions that might mask prejudice or self-interest in particular cases.”
ibid., pp. 176–177.
See Siltala 2000, p. 97. Siltala has referred to Dworkin’s ideas presented in Dworkin 1978, pp. 81–130 (hard cases), Dworkin’s `Law’s Empire’ (Dworkin 1986) and especially the Summers’ categorization expressed in Atiyah-Summers, pp. 11–21.
See Siltala 1998, pp. 45–50 and Siltala 2000, pp. 49–54.
See Siltala 1998, p. 46 compared with Siltala 2000, p. 50, in which he has used the term `methodological formality’ instead.
See Siltala 2000, p. 51.
ibid, p. 52.
See Siltala 2000, p. 53 and figure 1 in p. 57. Aarnio’s idea of rules, rule-like principles, principle-like rules and principles noted above seems to resemble Siltala’s categorisation of norms.
ibid., pp. 53–54. In addition to the categories of legal formality discerned above, Siltala has introduced the term `deontic formality’, which in a way sums up his analysis of legal formality in terms of Kelsen’s idea of legal imputation.
ibid., p. 54.
See Siltala 1998, pp. 54–59 compared with Siltala 2000, pp. 58–63. In the latter, the methodological formality has been added to the criteria. According to Siltala, conclusive legal rules and weak, defeasible legal rules exemplify a high degree of such formality, as the canon of semantics-oriented legal interpretation is employed in reading the ratio of the case at hand. Highly persuasive legal standards and weak legal principles or policies, on the other hand, exemplify low methodological formality, since the less formal procedure of weighing and balancing is to be employed when utilising such legal instruments in argumentation.
Siltala’s study is based on analysing the precedents in national legal orders, which has its impact on how he defines the term `source of origin’. Although there are two courts in the EC, the CFI and ECJ, Siltala’s version of source of origin does not seem to apply as well to EC law as it applies to national hierarchy of courts. On the other hand, the term `precedent’ might have a different meaning in EC law than in the national legal order, about which see MacCormick-Summers 1997, pp. 415–416.
See Siltala 2000, p. 60.
ibid.
See Dworkin 1978, p. 97.
See Siltala 2000, p. 56.
See Alexy 1985a, pp. 23–25 and Lappi-Seppälä, pp. 23–24..
See Pöyhönen, pp. 57–63, in which he describes the principle-orientated (periaatehakuinen) and rule-orientated (sääntöhakuinen) approaches to law.
See Rasmussen 1986, pp. 3–18, Weiler 1995, pp. 219–258 or in 1996 Edward, pp. 29–67.
See Arnull 1997, pp. 15–23, Grimm, pp. 282–302, Habermas, pp. 303–307, Hartley 1996, pp. 95–109, Hartley 1999, MacCormick 1995, pp. 259–266, MacCormick 1997, pp. 1–26, Preuss, pp. 267–281, Streit — Mussler, pp. 5–30, Weiler 1995, pp. 29–67, Weiler-Lockhart I, pp. 51–94 and Weiler-Lockhart II, pp. 579–627.
See Cappelletti, pp. 384 —401.
See C-13/94 P. y S. and Cornwall County Council (1996) ECR I-2143.
ibid., p.1–2165, para. 18 and see C-249/96 Grant (1998) ECR I-621, esp. p. I-649, para. 41.
See OJ No. L 39, 14.2.1976, p. 40.
See C-13/94 P. v S. and Cornwall County Council (1996) ECR I-2143, esp. p. 2165, para. 21.
ibid., para. 22: “To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard.”
For further comments on shifting conceptions of sexual discrimination and equality see the case C-249/96 Grant (1998) ECR I-621 and Bell, pp. 63–81.
See Raitio 1996, pp. 323— 331. The principle of subsidiarity is a concept which has led to translation difficulties.
See 283/81 CILFIT (1982) ECR 3415, esp. p. 3430.
See Dworkin 1978, p. 344. Dworkin does not maintain that there is no difference between moral and legal arguments in hard cases, so he does not represent “traditional natural law theory”.
See, e.g. Klami 1992, p. 846 and Klami 1997, p. 11. Klami has adopted the idea of the justification levels partly from Peczenik.
See Klami 1997, p. 11.
See Joutsamo-Aalto-Kaila-Maunu 2000, pp. 55–104.
See OJ No. L 297, 29.10.1990, p. 1.
See C-392/93 British Telecommunications (1996) ECR I-1631. Directive 90/531/EEC included technical concepts, which were difficult to translate and interpret.
See Raitio 1996, pp. 328–331.
See the joined cases C-34/95, C-35/95 and 36/95 De Agostini and TV-Shop (1997) ECR I-3843.
See OJ No. L 298, 17.10.1989, p. 23.
See Articles 28, 30, 46 and 49, respectively.
See Dworkin 1978, pp. 192–194.
ibid., pp. 356–359.
See Klami 1997,pp. 11–12.
See MacCormick-Summers 1991, pp. 1–7 or MacCormick-Summers 1997, pp. vii-x. This research group held its founding meeting in Helsinki 1983. For example, professors Aarnio, Alexy, MacCormick, Peczenik and Summers belong to the Bielefeld circle (Bielefelder Kreis). When the Bielefeld circle is mentioned in this presentation only the monograph in question is referred to in order to stress the connection of the various articles as a results of a joint international research project. The most cited chapters are `On Method and Methodology’ by Bankowski, MacCormick, Summers and Wróblewski in MacCormickSummers 1991, pp. 9–27, `Interpretation and Comparative Analysis’ by Summers and Taruffo in MacCormick-Summers 1991, pp. 461–510, `Interpretation and Justification’ by MacCormick and Summers in MacCormick-Summers 1991, pp. 511–544 and `Precedent in European Community Law’ by Barceló in MacCormick-Summers 1997, pp. 407–436.
See Bengoetxea 1993, p. 56, and Raitio 1996 p. 367.
See Klami 1989, p. 17.
See Joutsamo-Aalto-Kaila-Maunu 2000, pp. 86–93 and 11/70 Internationale Handelsgesellschaft (1970) ECR 1125, esp. pp. 1133–1137.
See Klami 1997, p. 13, in which he makes a distinction between heuristics, justification and argumentation. Argumentation for him amounts to “the reasons given to convince the relevant audience about the acceptability of the decision” and justification in turn is “the reasoning that the decision-maker is employing in order to become convinced about the correctness of the decision”. The Bielefeld circle does not seem to make the same kind of difference between justification and argumentation, so these terms are more intertwined in their study. For the purposes of this study, I consider the boundary between heuristics and justification/argumentation to be the relevant one and Klami’s division of justification and argumentation is therefore not employed.
See MacCormick-Summers 1991, pp. 16–17.
ibid., pp. 10, 18–19 and on the different versions of rationality on judicial argumentation see Aarnio 1987, pp. 188–195. The Bielefeld circle defined their aims and the objectives of their study in the following way: “A rational reconstruction of public authoritative practices of legal reasoning (or `argumentation’) in the operative interpretation of statutes in each of the several national legal systems, carried out with special regard to institutional, constitutional, and cultural background and to the doctrinal, comparative and international legal context of interpretational decisions.”
See 66/74 Farrauto (1975) ECR 157.
On the differences between the American and English common law, see David-Brierley, pp. 407–423.
See Zweigert-Kötz, pp. 74–285 and Letto-Vanamo, p. 147. Letto-Vanamo points out correctly that the division of various legal cultures in the EC is more nuanced than the division civil law/ common law countries would suggest.
See MacCormick-Summers 1991, pp. 464–465 and 512–525.
See Karlsson, pp. 43–45 and Makkonen 1978, pp. 71–72.
See Raitio 1996, p. 368.
See MacCormick-Summers 1991, pp. 464–465.
ibid., pp. 513–514.
ibid., pp. 469–470 and 514.
ibid., pp. 470, 515, 522–525.
For a more detailed presentation, see Raitio 1996, pp. 308–361.
See MacCormick-Summers 1991, p. 26 or 515 and Wróblewski, pp. 87–108, esp. p. 91: “The legal language, as all common natural languages, is characterized by the contextuality of meanings of many of its terms. The first level directives of interpretation specify how the pragmatically doubtful meaning of a rule ought to be determined taking into account its basic semantically relevant contexts. I single out three such contexts, i.e. linguistic, systemic, and functional. The first context is that of the legal language in which the interpreted rule is formulated; the second context is the system to which the interpreted rule belongs; the third context contains all socio-political, cultural, economical and other factors from the time of the enactment and/or interpretation (or application) of the rule in question.”
See Ojanen 1998, pp. 30–42, in which he has presented as the “schools of interpretation” textualism, originalism, structuralism and teleologism in the context of EC law.
See MacCormick-Summers 1991, pp. 479 and 525–526.
See Dworkin 1978, p. 37: “There must be some principles that count and others that do not, and there must be some principles that count for more than others”. More generally one might point out that the Dworkinian basic legal theory gives an order of priority to standards of the legal system assessing weights to them as discussed above.
See MacCormick-Summers 1991, pp. 526–527.
ibid., p. 515. Each type of argument is formulable in the following terms: “If interpretative conditions c exist, then statutory provision p. ought to be interpreted in manner m.” This formulation involves an application of Wróblewski’s idea that interpretation is an activity which itself involves guidance by normative standards of its own, namely the “directives of interpretation”.
In this context the term `collide’ is used for the same reasons that it was employed in the context of colliding principles. The dimension of weight of principles or interpretations serves as background reasoning.
See Wróblewski, pp. 91–93. The second-level directives of interpretation determine the manner of using the first-level directives. Wróblewski has divided the second-level directives into two groups: the directives of procedure and the directives of preference. The former specify the sequence of use of the first-level directives, the latter determine the choice between the various different meanings ascribed to the interpreted legal rule according to the first-level directives.
See MacCormick-Summers 1991, p. 480.
ibid., pp. 527–528.
See Klami 1997, p. 11 and Aarnio 1987, pp. 98–101. The priority maxims might be associated with `metanorms’ or `standards of preference’ presented above such as lex posterior, lex superior and lex specialis.
See MacCormick-Summers 1991, pp. 527–528 and Dworkin 1978, p. 23 in which the case Riggs v. Palmer is presented. The murderer did not receive his inheritance in the case.
See MacCormick-Summers 1991, pp. 481–482.
ibid., pp. 487–490. The significance of precedents in the context of interpreting statutes varies from country to country. The French Cour de Cassation is exceptional, because it generally does not cite precedents. A theory of precedent or interpretation of precedents are not studied further, because the emphasis is on statutes and on the interaction between rules and proto-norms. Precedents are here treated as arguments justifying a certain interpretation of a statute at hand, but this standpoint does not mean that the precedents, or case law in general, can not be perceived as a source of law too. Especially in EC law preliminary rulings under Article 234 EC have such an independent status that the case law of the ECJ has been treated as a source of law. This point of view in turn is connected with the discussion concerning the judicial activism of the ECJ.
ibid., p. 491. In the United States and the United Kingdom conventions rooted in the practices of the higher courts govern the minimum content. In many civil law systems in turn there are specific statutory provisions on what a judgment must contain. The minimum essential content may consist of a narration of procedural history of the case, a summary of the submissions made by the parties, a statement of facts, a reference to the applicable statutory rules, the reasoning of the resolution and the final judgment of the court.
ibid., pp. 490–491.
See Klami 1989, p. 45.
See MacCormick-Summers 1991, p. 492.
ibid., p. 493. The stated reasons may also contain substantive arguments and values.
ibid., pp. 490–495.
The French influence has been noted, for example, in Joutsamo-Aalto-Kaila-Maunu 2000, pp. 2–5. For instance the first primary norm, the ECSC Treaty, was originally signed only in French by the representants of France, Italy, Belgium, Luxemburg, Netherlands and Germany in Paris in 1951.
See MacCormick-Summers 1991, p. 494.
ibid., pp. 530–532.
ibid., p. 532.
ibid., pp. 534–535.
See Rasmussen 1986, p. 13 and Raitio 1994, pp. 46–47.
See 283/81 CILFIT (1982) ECR 3415.
On the French and American conceptions of a separation of powers linked with the concept of democracy, see MacCormick-Summers 1991, pp. 503–504.
ibid., pp. 535–537. The material aspect of the rule of law concerns basic human values, which both play a part in underpinning the commitment to implementing statute law and at the same time place constraints on acceptable interpretations thereof. If there was a statute which cannot be interpreted so as to exhibit consistency with the fundamental values of law, then its justificatory power and legitimacy would thereby be weakened. The formal aspect in turn relates to the banning of retroactive legislation or judicial decision-making. This prohibition of retroactivity is especially important in penal law.
ibid., pp. 537–538.
As an illustration of the differences between the French and Anglo-American legal systems and justificatory styles see David, p. 196: “A first supereminent principle that one might think of is resort to the concept of equity. At first glance, this technique seems to be ill-regarded in France. The word `equity’ has a bad press in France; French lawyers immediately associate it with the idea of arbitrary action. `God save us from the equity of the parlements (prerevolutionary courts)’ is a formula that is often cited and continues to influence the minds of lawyers and judges.”
See MacCormick-Summers 1991, p. 497.
ibid., pp. 497–498.
ibid., pp. 498–499.
ibid., p. 500.
ibid., pp. 505–506.
See MacCormick-Summers 1997, pp. 410–411.
On this tendency see the Charter of Fundamental Rights of the European Union, OJ No. C 364, 18.12.2000, p. 1 and Joutsamo-Aalto-Kaila-Maunu 2000, pp. 90–93.
See Kapteyn pp. 447–498 about Actions for infringement of the Treaty (Articles 226 and 227 EC, ex -Articles 169 EC and 170 EC), Actions for annulment (Article 230 EC, ex-Article 173 EC), Action against failure to act (Article 232 EC, ex-Article 175 EC) or Action for damages on the ground of the Community’s non-contractual liability (Article 288 EC, ex-Article 215 EC).
See Kapteyn, pp. 249–275 or Joutsamo-Aalto-Kaila-Maunu 2000, pp. 170–180 and Articles 220–225 EC (ex-Articles 164–168 and 168a EC).
See MacCormick-Summers 1997, pp.408–410. This approach is in line with the one adopted by the later work of the Bielefeld circle, although one ought to clarify in this context that the ECJ can give its preliminary ruling on the interpretation of the Treaty (sensu largo) and the interpretation or validity of acts of the EC institutions, not on the acts or legislation of the Member States.
See the Rules of Procedure of the Court of Justice of the European Communities, OJ No. L 176, 4.7.1991, p. 7, as amended in OJ No. L 44, 28.2.1995, p. 6 and OJ No. L 103, 19.4.1997, p. 1.
For comments see Anderson, pp. 286–293, MacCormick-Summers 1997, pp. 412–415 or Ojanen 1996, pp. 166–174.
See Anderson, p. 287. He refers to Advocate-General Warner, who has stated: “[T]he operative part of a Judgment of this Court should always be interpreted in the light of reasoning that precedes it”, concerning which see case 135/77 Bosch (1978) ECR 855, esp. p. 861.
See MacCormick-Summers 1997, pp. 413–414.
See Ojanen 1996, p. 184.
See MacCormick-Summers 1997, p. 411, 433 and Mancini-Keeling, p. 402.
See case 192/73 Hag (1974) ECR 731 overruled by C-10/89 HAG (1990) ECR I-3711 or case 8/74 Dassonville (1974) ECR 837 partly overruled by C-267/91 and 268/91 Keck and Mithouard (1993) ECR I-6097.
See MacCormick-Summers 1997, pp. 411, 430–435.
ibid., p. 411.
See MacCormick-Summers 1991, pp. 453–454, esp. p. 453: “The character of the US Supreme Court and other courts, and procedures, affects the way the judges interpret statutes or fill gaps in them. Judges in the American system are not career civil servants and as a result do not have a bureaucratic mentality. They are selected by political and semi-political processes, and this generally leads them to be rather independent and, in a few cases, even rather bold.”
See 40/64 Sgarlata (1965) ECR 227. The applicant submitted that a general principle of law existed which would entitle him to appeal against a Council regulation, but the ECJ rejected this view by stating that the applicant’s considerations could not override a clearly restrictive wording.
See Schermers-Waelbroeck, p. 15.
See Klami 1997, p. 22.
See Raitio 1996, pp. 368–369.
See The Treaty of Accession of Austria, Finland and Sweden, Art. 176, OJ No. C 241, 29.8.1994, p. 9, as substituted by the Adaption Decision, Art. 38, OJ No. L 1, 1.1.1995, p. 1.
See Kapteyn, p. 107.
ibid.
For a short introduction to the state court and federal court system in the USA see MacCormick-Summers 1991, pp. 407–408 and MacCormick-Summers 1997, pp. 355–359.
On the unanimity requirement in the Council as regards the rules governing the languages, see Article 290 EC (ex-Article 217 EC).
See Klami 1997, pp. 19–20.
ibid.
See Raitio 1996, pp. 325–328 and concerning the various approaches to the principle of subsidiarity, e.g. Delors, pp. 7–18, esp. p. 18 or Santer, pp. 19–30, esp. p. 30. According to my interpretation Santer’s view is in line with Delors’s standpoint of the double significance of subsidiarity.
See C-415/93 Bosman (1995) ECR I-4921.
An illustrative example would be the common law term `tort’, which can not be translated into Finnish by using just one word. The same applies to other languages of the civil law countries as well. On the other hand, there are examples of good translation equivalents too. The term `Advocate Général’ is translated into Finnish as julkisasiamies, which is a novel word and nowadays commonly used. The early translation virallinen asianajaja was misleading for various reasons. There are no such civil servants in the Finnish administration. In conclusion, one might state that there is no “one right answer” how to translate the legal concepts in multilingual EC. On `tort’ and `Advocate Général’, see Raitio 1996, pp. 316–317, and 323.
See Klami 1997, p. 20.
See Schermers-Waelbroeck, p. 13: “In law, words such as `public policy’, `public morality’ or force majeure, often express legal notions which have been evolved in the national legal systems. Even when the translation of such words causes no problem, their meaning may vary due to the differences of development in their national legal systems. The expression détournement de pouvoir (misuse of powers) is interpreted with a different meaning even in Member States using the same language, such as Belgium and France. Literal interpretation of Community law is hampered by the fact that it may be unclear which legal notion the words refer to. Only gradually can the Court of Justice elucidate the Community law meaning of such words, although sometimes it may be helped by the Community legislator which, for example, clarified the notion `public policy’ in certain directives.” On `public policy — ordre public’ see case 30/77 Bouchereau (1977) ECR 1999.
See C-450/93 Kalanke v Freie Hansestadt Bremen (1995) ECR I-3051.
See Landesgleichstellungsgesetz (LGG), Bremisches Gesetzblatt, p. 433.
See C-450/93 Kalanke v Freie Hansestadt Bremen (1995) ECR I-3051, esp. p. I-3072. The language of the case was German.
The ECJ interpreted in the case the Articles 1 (1) and 2 (1, 4) of the Council directive 76/207/EEC, OJ No. L 39, 14.2.1976, p. 40.
See C-450/93 Kalanke v Freie Hansestadt Bremen (1995) ECR I-3051, esp. p. 1–3079: “Article 2(1) and (4) of Council Directive 76/207/EEC… precludes national rules such as those in the present case which, where candidates of different sexes shortlisted for promotion are equally qualified, automatically give priority to women in sectors where they are underrepresented, under-representation being deemed to exist when women do not make up at least half of the staff in the individual pay brackets in the relevant personnel group or in the function levels provided for in the organization chart.”
See Raitio 1996, pp. 317–323.
See Schermers-Waelbroeck, pp. 12–13.
See 29/69 Stauder v City of Ulm (1969) ECR 419, esp. pp. 424–425 (paras 3 and 4 of the judgment).
See Hartley 1998, p. 71.
See Nugent, pp. 213–215. Not only the directives explain the workload of the translators, because the Council and Commission publish annually about 4000 regulations, 2500 decisions and 120 directives.
See C-129/96 Wallonie (1997) ECR I-7411 and the comments in Raitio 1999a, pp. 85–90.
See C-392/93 British Telecommunicatios (1996) ECR I-1631.
See the Gingerbread case 2/62 and 3/62 Commission v Luxembourg and Belgium (1962) ECR 425.
See 8/74 Dassonville (1974) ECR 837 or the Cassis de Dijon case 120/78 Rewe-Zentral (1979) ECR 649.
See 75/63 Hoekstra (1964) ECR 177 or 53/81 Levin (1982) ECR 1035.
See 41/74 Van Duyn (1974) ECR 1337.
See 48/69 ICI v. Commission (1972) ECR 619 or 6/72 Continental Can (1973) ECR 215.
See 6/73 & 7/73 Commercial Solvents (1974) ECR 223.
See 43/75 Defrenne v Sabena (1976) ECR 455.
See Brown-Kennedy, pp. 302–303, and esp. p. 303: “By its very nature and purpose, secondary legislation under the Treaties is much more tightly drafted. Thus the Common Customs Tariff (pursuant to Articles 19–29 EC) is a detailed catalogue of nearly 3000 items; it may still however give rise to problems of interpretation. But Community legislation also often makes use of vague terms: see, for example, Council Directive No. 64/221 which failed to clarify sufficiently the reference in Article 48 EC to `grounds of public policy, public security or public health’, a clarification which the Court had to supply in Case 41/74, Van Duyn v. Home Office.”
See 6/60 Humblet (1960) ECR 559, esp. p. 575.
See 8/55 Fédéchar (1954–56) ECR 245 or 9/56 Meroni (1958) ECR 133, esp. p. 140.
See 25/62 Plaumann (1963) ECR 95. For example, the term `decision’ in Article 230 EC (ex-Article 173 EC) ought to be interpreted consistently with the same term in Article 249 EC (ex-Article 189 EC).
See 3/54 ASSIDER (1954–56) ECR 63, esp. p. 87 or 6/54 Netherlands v. High Authority (1954–56) ECR 103.
See Brown-Kennedy, pp. 308–309, in which both Pierre Pescatore and Robert Lecourt are cited by the authors. Pescatore found the art of treaty-making is in part the art of disguising the irresolvable differences between the contracting States. Lecourt, the former President of the ECJ, in turn has stated that the authors of the Treaties have carried so far the trust which they have placed in the judge as the custodian of their common will that they have even destroyed every official trace of their travaux préparatoires.
ibid., p. 310 compared with Schermers-Waelbroeck, p. 15 and the case 29/69 Stauder v City of Ulm (1969) ECR 425. In the Stauder case, the ECJ referred to the preparatory discussions in the Management Committee to establish that the meaning expressed by the Dutch and German versions of the text at hand had not been intended by the legislator.
The recitals of the preambles have been referred to in cases 14/69 Markus (1969) ECR 349 or 9/72 Brunner (1972) ECR 961.
See Joutsamo-Aalto-Kaila-Maunu 2000, pp. 44–45 and Bull. EC 12 —1992, paras. 12–18. As a consequence of the principle of subsidiarity the Commission must express the reasoning for the proposed EC legislation in the preambles.
On the openness of the decision-making in the Commission and Council after the Amsterdam Treaty, see Joutsamo-Aalto-Kaila-Maunu 2000, pp. 221–225, the Commission Decision 94/90, OJ No. L 46, 18.2.1994, p. 58, Regulation No. 1049/2001, OJ No. L 145, 31.5.2001 and cases T-105/95 WWF UK v Commission (1997) ECR II-313, T-156/97 Achim Berge v. Commission (1997) ECR II-2097 or T-124/96 Interporc v. Commission (1998) ECR II-231.
See Brown-Kennedy, p. 311 compared with Ojanen 1998, p. 34 or Sunstain p. 236. Ojanen has used the expression `structuralism’ in this context.
See MacCormick-Summers 1991, p. 513 and Raitio 1996, p. 370. If in addition to the written law one includes in the legal system customary law, unwritten legal principles, the legal conceptual system and generally accepted social or moral norms, the contextual-harmonization arguments seem to relate only to written law, unlike the contextual arguments of the contextual interpretation defined above.
See Brown-Kennedy, p. 311.
See 190/73 Van Haaster (1974) ECR 1123, esp. p. 1135.
See the Gingerbread case 2/62 and 3/62 Commission v. Luxembourg and Belgium (1962) ECR 425, esp. p. 432.
See 152/73 Sotgiu (1974) ECR 153, esp. p. 162.
See the so-called ERTA-case 22/70 Commission v. Council (1971) ECR 263, esp. p.274, para. 12. AETR refers to ERTA in the text of the quotation.
See 6/64 Costa v. ENEL (1964) ECR 585, esp. p. 596.
See 23/75 Rey Soda (1975) ECR 1279, esp. p. 1304, para 33.
See 59/75 Manghera (1976) ECR 91, esp. p. 100, para 6.
See 64/69 Compagnie Française Commerciale et Financière (1970) ECR 221.
See Regulation No. 1983/83, OJ No. L 173, 30.6.1983, p. 1 (exclusive distribution) or Council Regulation No. 1984/83, OJ No. L 173, 30.6.1983, p. 5. (exclusive purchasing). There are also specific block exemptions concerning technology licensing, motor vehicle distribution, franchising and various aspects of joint research, as well as regulations in the spheres of air and maritime transport and insurance.
See OJ, English Special Edition 1959–62, p. 87.
See 56/64 and 58/64 Consten and Grundig (1966) ECR 299.
See Schermers-Waelbroeck, p. 17.
See 120/73 Lorenz (1973) ECR 1471, esp. p. 1481.
See 110/75 Mills (1976) ECR 1613, esp. p. 1626.
See the cases 4/79 Providence Agricole (1980) ECR 2823, esp. p. 2853, 109/79 Maïseries de Beauce (1980) ECR 2883, esp. p. 2913 and the Fourth Roquette case 145/79 Roquette Frères (1980) ECR 2917, esp. p. 2946.
For a definition see MacCormick-Summers 1991, p. 514. The definition of the Bielefeld circle seems to be too narrow for the purposes of the EC law, because it stresses too much the doctrinally elaborated legal concepts in the formulations of the statutory norms. The case law of the ECJ also contains important legal concepts, which have been doctrinally elaborated by the scholars in the literature concerning EC law as well as the Court itself.
See Kapteyn, p. 526.
See MacCormick-Summers 1991, pp. 514–515.
See Schermers-Waelbroeck, pp. 18–26. Teleological interpretation can be supported by referring to the preamble of the EC Treaty or to the principle of loyalty. The teleological interpretation is employed to both primary and secondary norms.
See Kapteyn, p. 53.
See Brown-Kennedy, pp. 316–317 or Raitio 1996, p. 372.
See 26/62 Van Gend en Loos (1963) ECR 1, the ERTA-case 22/70 Commission y Council (1971) ECR 263, 6/72 Continental Can (1973) ECR 215, 43/75 Defrenne y Sabena (1976) ECR 455 or 262/88 Barber (1990) ECR I-1889.
See MacCormick-Summers 1991, p. 515.
See 283/81 CILFIT (1982) ECR 3415, esp. p. 3430, para 20.
See Raitio 1996, p. 355.
See Hartley 1998, pp. 77–78.
See Brown-Kennedy, p. 321.
See Aarnio 1987, pp. 3–8, 44 or Aarnio 1997, pp. 189–193, Peczenik 1983, p. 78, Peczenik 1989, pp. 31–35 or Peczenik 1995, pp. 89–100. The connection between Aarnio and Peczenik has been described in Peczenik 1989, p. 32.
See Aarnio 1997, pp. 191.
See Aarnio 1987, p. 4 and Brusiin, 95–98. Brusiin has also distinguished the two elements of legal certainty in his studies on discretion by the judge.
See Klami 1990, pp. 56–57.
See Aarnio 1997, p. 191 and compare with Peczenik 1989, p. 35, in which he states: “In the Roman republic, the praetor could thus order the judge to assume the fiction that the demands of ius civile were fulfilled in the case under adjudication. The praetors, acting in close contact with judicial practice, thus developed an entirely new legal system. A partly similar evolution took place in medieval England.”
See Beyer, pp. 22 ff.
See Peczenik 1995, p. 89.
See Aarnio 1987, p. 5, Axberger, pp. 146–147 and Peczenik 1995, p. 92.
See Peczenik 1989, p. 31. He refers to Frändberg, p. 41, Hayek, pp. 72 ff., Opalek, pp. 497 ff. or Raz, pp. 210 ff. in this context.
ibid.
See MacCormick-Summers 1991, pp. 534–535, esp. p. 535.
On the terms sensu stricto, sensu largo and sensu largissimo, see MacCormick-Summers 1991, pp. 12–13 and Wróblewski, pp. 87–88.
See Aarnio 1987, p. 3.
See Aarnio 1997, pp. 189–190 and Peczenik 1989, pp. 29–31.
See Peczenik 1989, p. 34. Denegatio iustitiae is forbidden by written or customary law in many countries. One can refer to the French Code Civil, which determines the criminal responsibility of a judge who refuses to decide the case at hand because the law is silent or unclear.
See Peczenik 1989, pp. 29–31.
See Klami 1989, pp. 25–37.
See Aarnio 1997, p. 190.
On the importance of thorough justification, see Aarnio 1987, pp. 6–7.
See Bix, p. 106 and footnote 75.
ibid.
See Aarnio 1987, p. 3 and Aarnio 1997, p. 191 and Peczenik 1989, p. 32.
See Aarnio 1987, p. 4 and Peczenik 1995, p. 90.
See Aarnio 1997, p. 191.
See Peczenik 1989, p. 34.
See Aarnio 1997, pp. 191–192.
See Aarnio 1987, p. 4.
See Peczenik 1995, pp. 97–98, esp. p. 97.
See Aarnio 1987, p. 38 or Aarnio 1997, p. 191.
See Jareborg, p. 90 and Frände’s comments on Swedish opposition to Peczenik’s approach to legal certainty in Frände, p. 164.
See Asp, pp. 31–37, esp. p. 33.
See Aarnio 1987, pp. 33–38, Bengoetxea 1993, pp. 56–57, Klami 1980, pp. 55–57 or Wróblewski, pp. 75–83.
See Siltala 1998, p. 189 compared with Siltala 2000, p. 182. In the latter Siltala has adopted a term `naturalist validity’ instead of axiological validity.
See Aarnio 1987, p. 38.
See Wróblewski, p. 76.
See Siltala 2000, pp. 182–183.
See Bengoetxea 1993, p. 56.
See C.309/89 Codorniu (1994) ECR I-1853.
See C-65/93 Parliament v. Council (1995) ECR I-643.
See T-115/94 Opel Austria (1997) ECR II-39, esp. p. II-82, paras. 124–125.
See Peczenik 1989, p. 40.
See Aarnio 1997, p. 193.
ibid. and Bergholtz, p. 327.
See 69/83 Lux (1984) ECR 2447, esp. pp. 2466–2467.
See Rasmussen 1993, pp. 83–84, cases 93/78 Matheus v. Doego (1978) ECR 2203, esp. pp. 2209–2212, 138/79 Roquette Frères (1980) ECR 3333, esp. pp. 3360–3361, para. 33 in particular and C-300/89 Commission y Council (1991) ECR I-2867, esp. p. I-2900, para. 20.
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Raitio, J. (2003). Beyond Literalism — Conceptions and Theoretical Remarks about Norms, Validity, Interpretation, Judicial Activism and Legal Certainty. In: The Principle of Legal Certainty in EC Law. Law and Philosophy Library, vol 64. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0353-6_7
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