The Theoretical Foundations of EU Law

2021 ◽  
pp. 15-47
Author(s):  
Neil Walker
Keyword(s):  
Cultural Identity ◽  
Theoretical Approach ◽  
Legal Theory ◽  
Eu Law ◽  
The Common ◽  
The Law ◽  
Theoretical Foundations ◽  
The Eu

This chapter investigates the contribution of legal theory in understanding the distinctiveness of law’s role in the EU. It does so by evaluating which theoretical approach, or approaches, generate the best conception of law’s place in a wider political vision of supranational community. Key candidate conceptions are positivism, culturalism, idealism, and pragmatism. For positivism, the focus is on ‘the authorized law’; for culturalism, ‘the appropriate law’; for idealism, ‘the good law’, and for pragmatism, ‘the law that works’. Whereas EU law lacks the direct democratic resources, the common cultural identity, and the plausible claim to universalism to support robust versions of positivism, culturalism, and idealism, its investment in the security and versatility of law in providing positive-sum policy outputs has instead supported a primarily pragmatic vision of law’s legitimacy. The chapter concludes by examining the fragility of excessive dependence on pragmatism in an environment where various crises increasingly undermine even modest levels of secondary reliance on positivist, culturalist, and idealist justifications, and by addressing the possibilities inherent in an alternative proceduralist model of EU law.

The Diverse Objects of Public Law

2020 ◽  
pp. 19-44
Author(s):  
Neil Walker
Keyword(s):  
European Union ◽  
Cultural Identity ◽  
Theoretical Approach ◽  
Legal Theory ◽  
Public Law ◽  
Political Environment ◽  
Eu Law ◽  
The European Union ◽  
The Law

This chapter investigates the significance of legal theory for understanding the role of law in the European Union. It does so by comparing and evaluating which theoretical approach, or approaches, generates the best conception of the role of law in articulating a vision of the world’s first supranational polity. The key candidate conceptions are supplied by positivism, idealism, culturalism, and pragmatism. For the positivist, the focus is on ‘the authorised law’; for the idealist, ‘the good law’; for the culturalist, ‘the appropriate law’; and for the pragmatist, ‘the law that works’. Whereas EU law lacks the direct democratic resources, the plausible claim to universalism, and the sense of common cultural identity to support robust versions of positivism, idealism, and culturalism respectively, its investment in the security and versatility of law in providing positive-sum policy outputs has supported instead a primarily pragmatic vison of law’s legitimacy. The chapter concludes by examining the fragility of excessive dependence on the pragmatic model of law in a political environment where the various crises of the European Union increasingly undermine even modest levels of secondary reliance on positivist, idealist, and culturalist justifications.

Why Psychoanalysis Matters to Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Lived Experience ◽  
Criminal Law ◽  
Legal Theory ◽  
Practical Knowledge ◽  
Individual Freedom ◽  
Human Beings ◽  
Legal Doctrine ◽  
Legal Rules ◽  
The Law ◽  
Theoretical Foundations

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

4. Freedom of movement for EU nationals

2018 ◽  
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt ◽  
Helena Wray
Keyword(s):  
Free Movement ◽  
European Law ◽  
Eu Law ◽  
Freedom Of Movement ◽  
The Law ◽  
The Eu ◽  
Third Country Nationals

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter discusses the law which governs the free movement of people within the EU. As such, it is principally about the movement of EU nationals. The movement of non-EU nationals, known in European law as third-country nationals, may come within the ambit of EU law due to their connection with EU nationals; for instance, as a spouse or employee. The chapter concentrates on the rights of EU nationals and their families to move within the EU, and covers the powers to deport or remove EU nationals. It also considers the possible impacts of Brexit on free movement rights.

scholarly journals Pravo mjerodavno za povrede prava tržišnog natjecanja

2018 ◽  
Vol 39 (1) ◽  
pp. 183-214 ◽  
Author(s):  
Ivana Kunda
Keyword(s):  
Legal Theory ◽  
Competition Law ◽  
Public Interests ◽  
Eu Legislation ◽  
National Competition ◽  
Competition Laws ◽  
Scope Of Application ◽  
The Law ◽  
Contractual Obligations ◽  
The Eu

<span>Issues arising in the context of determining the law governing competition law breaches are numerous and complex. The situation is no different following the harmonisation of the national rules as a result of the recently adopted Directive on damages for infringements of the competition law provisions. This paper is aimed at scrutinising various such issues, in particular it deals with interpretation of the concepts found in Article 6(3) of the Rome II Regulation on the law applicable to non-contractual obligations and the related aspects of interaction between EU and national competition laws. From the scope of application ratione materiae of the mentioned conflict-of-law provision and defining the “market” as an essential component of the connecting factor lex mercati, to the functioning of the general provisions aimed at protecting public interests, the author presents the opposing views expressed in legal theory and points out the principles which should be taken into account in the course of the analysis. Additional emphasis is put on the thorny questions which originate from erroneous translation of the EU legislation into the Croatian language.&nbsp;</span>

Administrative Procedure and Judicial Review in the European Union

2021 ◽  
pp. 47-49
Author(s):  
Matteo Gnes
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Eu Law ◽  
The European Union ◽  
Administrative Procedure ◽  
Administrative Action ◽  
National Courts ◽  
The Common ◽  
Procedural Requirement ◽  
The Eu

This chapter assesses administrative procedure and judicial review in the European Union. The requirement of judicial oversight of administrative action, which results from the common constitutional traditions of the Member States of the EU, is a general principle of EU law, and it is applicable both to proceedings before the Court of justice and before national courts, when EU law is invoked before them. The EU courts carry out a generalized review on any binding acts. Although there are certain differences between acts that may be challenged according to the different remedies provided by EU law, in order to be challengeable, the acts must fulfil several conditions. The most important are: they must be binding and produce legal effects, be definitive and be taken by EU institutions in the exercise of their competencies. Article 263 TFEU provides that the acts of EU institutions may be annulled on grounds of 'lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers'. Acts or failure to act may give rise to the liability of EU institutions.

Incorporation

2020 ◽  
pp. 80-107
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
Point Of View ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Law Of Nations ◽  
International Legal Order ◽  
Structural Principles ◽  
The Law ◽  
Political Communities ◽  
The Eu

This chapter shows how national courts receive European Union (EU) law by way of dualism in the same way they receive international law. From the member states’ point of view EU law is not the law of a new jurisdiction but the law of an international legal order. Incorporation is not a simple transfer. Member state courts incorporate EU law through three structural principles: ‘conditional primacy’, ‘institutional tolerance’, and ‘integrity’. These principles are uniquely relevant to the transnational nature of EU law. The member states remain independent political communities. Integrity, thus, applies to EU law on the basis that the EU is a community of communities of principle. The ideals of a community of principle apply to the EU only when it is seen as a union of peoples that come together on the basis of the law of nations. The practical or deliberative understanding of law provides an account of the relationship between domestic and EU law without paradox.

scholarly journals Ascertaining the ‘Guarantee of Guarantees’: Recent Developments Regarding the Infringement Procedure in the EU’s Rule of Law Crisis

2021 ◽  
pp. 207-236
Author(s):  
Matthias Schmidt ◽  
Piotr Bogdanowicz
Keyword(s):  
Rule Of Law ◽  
Critical Assessment ◽  
Fundamental Rights ◽  
Close Reading ◽  
Eu Law ◽  
The Rule Of Law ◽  
Recent Developments ◽  
Charter Of Fundamental Rights ◽  
The Common ◽  
The Eu

AbstractThis chapter builds on an assessment of infringement proceedings in the EU rule of law crisis that we previously published in the Common Market Law Review. We offer a close reading of two recent prominent infringement cases by the European Commission against Poland (cases C-619/18 and C-192/18). Noteworthy advancements in EU law made with them are in particular a clarification on the parallel use of Articles 7 TEU and 258 TFEU, the use of both interim relief and an expedited procedure prior to the judgment, and, as regards the merits, further substance for the functioning of Articles 19 TEU and 47 of the EU Charter of Fundamental Rights regarding the operationalisation of the rule of law in EU law. We offer a critical assessment of the Court’s findings and contextualise in light of two Commission communications on the rule of law published in 2019.

4. Freedom of movement for EU nationals

2021 ◽  
pp. 107-144
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt
Keyword(s):  
Family Member ◽  
Free Movement ◽  
European Law ◽  
Eu Law ◽  
Freedom Of Movement ◽  
The Law ◽  
The Eu ◽  
Third Country Nationals

This chapter discusses the law which governs the free movement of people within the EU. As such, it is principally about the movement of EU nationals. The movement of non-EU nationals, known in European law as third-country nationals, may come within the ambit of EU law due to their connection with EU nationals, for instance as a spouse, family member, or employee. The chapter concentrates on the rights of EU nationals and their families to move within the EU, and covers the powers to deport or remove EU nationals. It also considers the possible impacts of Brexit on free movement rights.

Property

2019 ◽  
pp. 278-304
Author(s):  
Adrian Briggs
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Common Law ◽  
Foreign Country ◽  
Private International Law ◽  
The United Kingdom ◽  
The Common ◽  
The Law ◽  
The Eu

This chapter discusses English private international law in terms of property. The private international law of property covers immovable and movable property, tangible and intangible property, as well as intellectual and family property. In the United Kingdom, most of the conflicts rules are established by the common law. Although the EU intervened to harmonize private international law in the fields of succession to property and matrimonial property, those Regulations did not extend to the United Kingdom. Where the conflicts rules are found in the common law, a court may be entitled to apply the law selected in its renvoi sense: that is to say, to apply the law (including any conflicts rules) as it would be applied by a judge sitting in the foreign country and hearing the case himself.

scholarly journals The effect of the establishment and application of European law in Poland – selected theoretical issues

2020 ◽  
Vol 2020 (56) ◽  
pp. 171-182
Author(s):  
Jacek Zaleśny
Keyword(s):  
Legal Order ◽  
European Law ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Member States ◽  
International Obligations ◽  
The Law ◽  
Polish Law ◽  
The Eu

The article is focused on the effect of the establishment and application the European Union law in Poland immediately after 2004. By becoming the law binding in Poland (and other member states of the EU), the EU law effected significant changes in the sphere of law creation and application. Traditionally, in the national legal order, the law of the highest force is the constitution, while in accordance with the EU legal order, the regulations of the European law are superior in their application in the territory of the member states, including the regulations of the constitution. The present analysis explains how the dilemma of the simultaneous superiority of the regulations of the constitution and the regulations of the EU law was solved in Poland and what importance is attributed to the concept of favourable interpretation of the national law and the EU law. The present paper poses the hypothesis that the model of reconciling the regulations of the Polish law and the regulations of the European law developed in Poland immediately after 2004 was correctly established. It contributes well to Poland meeting international obligations, at the same time respecting the superior position of the constitution.

Sign in / Sign up

Export Citation Format

Share Document