The Function of Judicial Decision in European Economic Integration

ISBN-13: 9789401186797 / Angielski / Miękka / 1972 / 567 str.

Clarence J. Mann

Opis

The present generation lives in a time of transition. The isolated national legal order, the supreme idea of 19th Century legal science, begins to be superseded by the evolution of a wider international and transnational net work of legal rules and conceptions. With the recognition of a fundamental guarantee of human rights as a binding ingredient of the framework of inter national law, the strict separation of the internal system of the states from the international community is transcended. To this extent, the rules of international law now exercise a direct influence upon the national legal order. In some conventional arrangements safeguarding human rights, the individual is given direct access to international protection against his own state. The piercing of national borders by transnational norms finds its strongest expression in the formation of regional communities of states which seek to develop a common fund of legal rules, concepts and principles among their members. The leading role in this direction lies with European organizations. In the Community formed by the signatories of the European Convention on Human Rights, the members accept for themselves a stan dard of legal guarantees for fundamental rights of the individual laid down in the Convention. The organs of the Convention, including the Court and foremost the Commission, fulfill their tasks by measuring the national laws of the member states against the basic requirements embodied in the Euro pean Convention.

Spis treści

One The Organizational Framework of the Court of Justice Chapter.- I: The Legal Character of the Communities.- 1. The “Community” Idea.- 2. Community Independence in Policy Formation.- 3. The Community Legal Orders.- 4. Conflict Between Community and Member State Law.- 5. The Development of Community Consensus.- Conclusions.- II: The Jurisdiction of the Court.- 1. The Scope of Judicial Review.- 2. The Forms of Appeal.- Preserving the Unity and Integrity of Community Law.- Maintaining the Limits and Balance of Powers within the Communities.- Protecting the Rights of Private Parties.- Conclusions.- Two The Theoretical Foundations of Judicial Decision.- III: The Concept of Law in Judicial Decision.- 1. The Challenge of Legal Positivism.- Begriffsjurisprudenz.- Hans Kelsen.- H. L. A. Hart.- 2. The Rationality of Judicial Decision.- Self-Critical Reasoning.- Persuasive Reasoning.- Pragmatic Reasoning.- Conclusions.- IV: The Institutional Foundations of Judicial Decision.- 1. The Legacy of Montesquieu.- 2. The Illusion of Judicial Neutrality.- The Concept of Determinate Norms.- Neutral Principles of Law.- 3. The Nature and Limits of the Judicial Power.- The Power to Legitimate.- Institutional Constraints.- 4. The Proper Scope of the Judicial Function.- The Overriding Task of Judicial Decision.- A Dialectic of Judicial Decision.- Conclusions.- Three The Jurisprudence of the Court.- V: The Search for Purpose.- The Question of Methods.- 1. The Substantive Lines.- Developing Major Treaty Purposes.- A Common Price System.- Orderly Markets.- Special Burdens and Benefits.- Normal Conditions of Competition.- Of Powers Implied and Reserved.- 2. The Institutional Lines.- Delimiting the Judicial Function.- The Remanding Function.- Conclusions.- VI: The Search for Authority.- 1. Judicial Contribution to Consensus-Building.- The Integrity of Community Procedures.- The Formation of Legal Sources.- The Treaty Systems.- General Principles of Law.- Judicial Decision and Precedent.- Acts and Practices of Interpretation.- Reasoning from Probable Effects.- 2. The Dialogue Between the Courts.- Disciplining the Dialogue.- The Scope of Interpretation: A Most Delicate Matter.- On Judicial Responsibility.- Conclusions.- VII: The Search for Practicability.- 1. The Well-Shaped Rule.- The Lure of Simplicity.- Per se Analysis.- 2. Of Rule and Discretion.- The Court and Community Organs.- Discretion in Timing and Enforcement of the Treaties.- Individualization in the Motivation Requirement.- Retroactivity and Certainty in Executive Decisions.- At the Edge of Community Jurisdiction.- Conclusions.- Conclusions.- Abbreviations.- Index of Court Decisions.- Index of Treaty Articles.- Index of Subject and Author.