The European Court of Justice as a Context-Conscious Lawmaker

European Union Law › Law

The European Court of Justice as a Context-Conscious Lawmaker

By Urška Šadl
Hart Publishing August 2024

Specifications

ISBN-13
9781509968121
Publisher
Hart Publishing
Publication
August 2024
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

Courts are context-conscious. They solve legal disputes with societal impact in mind, using interpretive tools and procedural means. This book develops concepts and methods for a systematic and legally informative analysis of this complex process. The evidence delivered prompts a conversation about the authority courts have to change the law. The analysis focuses on the European Court of Justice and its free movement case law. The framework and theory, however, are relevant to courts and case law everywhere. This is a compelling and intriguing examination of the ECJ and its shaping of a key tenet of EU law.

Table of Contents

Introduction
1. The Mechanisms and the Mechanics of Judging
a. The Argument
b. The Puzzle
c. The Structure (analysis)
d. Motivation and Contribution
e. Chapter by Chapter Outline

PART I: The Analytical Framework
2. Context Conscious Judging as the Object of Inquiry in Social Sciences and Legal Theory
a. Theories of Judging
i. Maximizing Values (Consequentialism)
ii. Minimizing Conflict (Incrementalism)
iii. Maximizing Power (Strategy)
iv. Maintaining Authority (Legal diplomacy)
b. The European Court of Justice as the Object of Normative, Empirical, and Socio-Legal Inquiry
i. The 'Integrationist' Reasoning (Critique of the Court)
ii. The Court's Legal Means and its Political Success
3. Good Judgment as a Distinct Form of Context Conscious Judging
a. Prototype of Judicial Decision-Making
b. Good Judgments as a Departure from the Prototype
i. Good Judgment and the 'Correct' Meaning of the Norm
ii. Deference
iii. Restriction-Justification Reasoning
c. A Typology of Good Judgment
i. Europeanization Without Sanction
ii. Deferential Upholding of European Rights
iii. Bounded Interpretation
4. Approach and Method
a. The Annotation Process: Nuance in a Comprehensive Analysis of Case Law
b. The Legal Characteristics of Free Movement Case Law
c. Reconstructing Case Context: Facts, Institutional Factors, and Politics

PART II: The Mechanics of Discreet Judgments / Analysis
5. Persons
a. The Rights and the Reality of Free Movement / Choice of Policy Area
b. Emblematic Cases
i. Non-Sanctioning Europeanization of National Policies: Groener
v Facts
v Justification
v Context
v Implications
ii. Deferential Upholding of European Rights: Vaassen-Göbbels
v Facts
v Justification
v Context
v Implications
iii. Bounded Interpretation: Blaizot
v Facts
v Justification
v Context
v Implications
c. Good Judgment 1954 – 2020: Trends and Patterns
6. Goods
a. The National Product in the Common Market
b. Three Forms of Justification: Emblematic Cases
c. The Forms of Reasoning 1954 – 2020: Trends and Patterns

PART III: The Mechanism(s)
Varieties of Good Judgment in Free Movement Case Law
d. Case Motivated Good Judgment
i. Reconstructing the Facts
ii. Personal Characteristics of Applicants
e. The Institutional Changes and Good Judgment
i. The Chamber System
ii. The Sitting Formation and the Working Culture
f. Externally Motivated Good Judgment
i. Reconstructing the Broader Economic and Political Context
ii. Vital State Interests and European Rights
g. Other Forms of Good Judgment
i. Good Judgment as Exceptional Events / Limitations of the Analysis
ii. Presentation of Facts in Judgments
iii. Selective Treatment of Precedents
h. Temporal Dynamics of Good Judgment
Conclusion
7. The Implications of Discreet Judging
a. Summary of the Argument and the Main Findings of the Analysis
b. Normative Considerations
c. Toward a Revisionist Theory of Judicial Lawmaking
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