LIST OF ABSTRACTS
Matej Avbelj, New University
The Role of Judicial Ideology in Judicial Decision-making
This presentation will address two research questions. First, what is judicial ideology? Second, what is the role of judicial ideology in a legal system, concretely in the process of judicial decisionmaking? The presentation will be broken down into two parts. Initially we will define judicial ideology by delineating it from a general notion of ideology and consequently by differentiating it from judicial philosophy. It will be also argued that judicial ideology should be better understood in multidimensional rather than binary terms. This will enable us, in the second part, to hypothesize about the potential role of judicial ideology in the process of judicial decision-making. It will be argued that with regard to this question three conceptions of the role of judicial ideology in law exist and that, if opting for a discursive conception, the relevance of judicial ideology in the practice of courts can be quite meaningful.
Janez Šušteršič, Reforma Ltd.
Ideology in Legal Argumentation
The paper will present a novel methodology to assess judges' ideological positions along three distinct dimension. The methodology was developed within the project 'Ideology on the Courts' which focuses on ideological positions of judges in the Slovenian constitutional court. It is based on content analysis of argumentation used in courts' writings, that is the reasons of the decision and any available separate opinions. The merits of this essentially qualitative methodology will be compared with the prevalent exisiting approaches, which either use a mechanical coding of votes or take the ideology of the appointing authority as a proxy for the ideology of the appointed judge. Some illustrative cases of how ideology is revealed through judges' argumentation will be discussed in more detail.
Hanna Maria Kreuzbauer, University of Salzburg
A Theory of Rationality
This paper presents the final version of the theory of rationality developed by the author in the last ten years. It consists of the following parts: 1.) Theory a) The concept of rationality: Rationality as a property of justifying argumentation and as optimization of the use of evidence resources b) Rationality in the context of the history of philosophy and science: From mythos to logos, from logos to Scholastic logic, from divine logic to Rationalism and pure reason, from rationalism to neo-rationalism, from neo-rationalism to neo-realism, and all of them against postmodernity c) The roots: Self-justifying foundations of rationality: The theorem of non-contradiction and other theorems from ontology, epistemology, theory of language and logic 2.) Operationalization a.) Types of justification: Analytical justification and other kinds of justification, esp. justification by reasoning (in particular also analytical and synthetic justification) b.) The technique of argumentation, in particular the modelling of ontic existential links c.) Quality management of argumentation: correspondence, trustworthiness, strength and rationality d.) Direct and indirect justification e.) Justification by the technique of the least bad alternative (LBAT) f.) The technique of the least bad alternative applied to normative justification tasks: the HUMAX principle
Luka Burazin, University of Zagreb
Legal Office
The paper aims to explicate what kind of entity legal offices are and what their specific mode of existence amounts to. That is, it aims to explicate in virtue of what legal offices can be said to exist. Also, it aims to explain in virtue of what these offices can be said to be legal. While the basic idea rests on an antirealist ontological position, according to which artifacts, and thus, per hypothesis, legal offices, depend on the human mind (i.e., they are mind-dependent entities) in the sense that the mental states of the authors of artifacts and the concepts on which these states are based are (at least partly) constitutive of their existence, the paper strives to show the relevance of the actual use of legal offices for their existence. The paper first sets out the initial concept of legal office as found in ordinary legal discourse (Section 2). It then makes a distinction between original and derived legal offices in order to account for the relevant differences between the offices of the first constitution-maker, legislature and judiciary, in particular with regard to the issue of what makes them legal (Section 3). This is followed by the explication of that in virtue of which legal offices can be said to exist and how they should ontologically best be understood (Section 4). Finally, the paper analyzes the way in which legal officials as officeholders, and their carrying out the deontic powers conferred on them, can be said to affect the existence of legal offices (Section 5).
Rok Svetlič, Law Institute, Science and Research Centre Koper Compatibility of Religion and the State – Problem of Interpretation of Constitution
The article is dedicated to the problem of the compatibility of the secular state and religion, which, in the face of mass migration to Europe, has again become actual. The author highlights the process of reconciliation between these phenomena as a sine qua non of Western democratic culture and shows its development. Therefore, the current problems in this area are not the result of a lack of theoretical concepts but of their non-use. The main role in this is the concept of a general will, which does not belong to anyone and thus does not risk the objection of exclusory discourse. It turns out that the general will recognizes to the individual the existence of the right to religion and its manifestation, as well it determines the limits of this right. This right is not a bianco-clause, which would be subsequently filed by the feelings of a religious person or religious dogma, this is precisely the main source of problems related to the religion of immigrants. A secular society contains moral standards that determine what does it means to be religious in a secular society.
Vojko Strahovnik, Jonas Miklavčič, University of Ljubljana Drago Bokal, University of Maribor Simona Drenik Bavdek, Catholic Institute
Transparency in AI’s Decision Making: Some Ethical and Legal Reflections
One of the most common requirements within the ethics of artificial intelligence (AI) is the provision that once an AI system begins to operate within the social context and where such operation replaces all or some aspects of the cognitive work previously performed by human agents, such a system inherits the ethical and social requirements that beforehand pertained to the latter. Decision-making inevitably falls within the scope of such cognitive tasks, and, furthermore, seems to be a domain where the role of AI systems and algorithms are on the rise. In the paper, we are going to examine the scope of such requirements which broadly fall within this scope. In particular, we will focus on the requirement of transparency. Here, there are several interesting dialectical directions one can investigate. On the one hand, there is a challenging question of what transparency is and how to establish it in relation to AI systems. On the one hand, our initial sceptical worries about transparency in AI systems might lead us to reconsider the transparency in ordinary, i.e. human decision making. Here we will touch upon the question of the transparency of decision-making of group agents (e.g. large corporations and governments).
Ivana Tucak, University of Osijek
Informed Consent as a Human Right
The concept of a patient’s informed consent has enticed a number of scholarly discussions and controversies. Regarding legal scholarship and bioethics, there is no consensus about its meaning and content. It is a dynamic doctrine emerged in US case-law in the second half of the 20th century. Although it is a relatively new concept, there are still initiatives for its reconceptualization. Nowadays, there is a growing number of authors who claim that there is a fair consensus among member states of the Council of Europe not only on the right of an adult competent patient to provide informed consent to any medical intervention but also on his/her right to reject it even if such rejection will put his/her life in danger. Those authors also believe that the European Court of Human Right should monitor if national legal regimes respect this principle (Isra Black). This right is primarily perceived through the prism of Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although the value of individual autonomy is not absolutely protected (Article 8 paragraph 2), pursuant to the case-law of the European Court of Human Rights, personal decisions on the health of an adult competent patient should be respected regardless of their irrationality or the fact that they are not in the patient’s best interest. This paper is aimed at reexamining arguments pro and contra this individualistic approach to informed consent, which puts the emphasis on the self-determination of an individual and the right not to interfere with his/her choices in medical law cases.
Marko Novak, New University Judicial Rhetoric as Third Criteria of Justifying Judicial Decisions A standard topic in legal argumentation theory is the justification of legal/judicial decisions. Two sets of criteria have so far been developed: ‘logical’ within the so-called internal or first-order level of justification, and ‘dialectical’ within the so-called external or second-order level of justification. The role of the external criteria is to justify the internal criteria in case of their doubtful premises in hard cases. But are there any other criteria, in addition to the two mentioned, to justify the external ones, in very hard cases, in which the external criteria need their own justification of “necessary” application. I claim this role is taken by the so-called rhetorical criteria, when rhetoric is understood in a normative sense.
Luka Martin Tomažič, Alma Mater Europaea Finnis’s Natural Law Theory: Incommensurability of Values, Common Good and Privatio Boni This paper will critically analyse the natural law theory of Finnis. First his theory will be briefly presented. Then certain important flaws will be pointed out. Only those issues, which have not yet been discussed in depth in the relevant literature or which need further clarification, will be emphasized. The first pertains to the incompatibility of the focal meaning of law with Finnis’s statement regarding the incommensurability of values. If values are indeed incommensurable, then the focal meaning of law cannot be known. According to Finnis, law namely exists in degrees and is intimately connected with the notion of common good. The latter in turn consists of a plethora of different values. Furthermore, other values had to be deemed as less good in order to arrive at such a conception. Secondly, Finnis’s idea of common good, as he formulates it, is too opaque. He uses seven basic goods to explain the concept. These are however posited as notions with unlimited semantic range. It is possible to choose between them seemingly at will in order to ascertain common good in individual cases of law. Thus, to paraphrase Bentham, the focal meaning of law in Finnis is simply the focal meaning of ‘what I like’. Thirdly, his theory omits too much. His privatio boni inspired idea of law being less legal, if it does not promote the common good, is based on an intuitive judgement. What he is actually doing is substituting the notion of ‘congruence with morality’ with the somewhat awkward notion of Law (as contrasted with law without capital L). In this sense, he has not really addressed the objections to classical natural law theories, but merely presented a smokescreen, which has allowed him to sidestep them. Lastly, potential solutions to above problems will be discussed in light of his theory. It will be claimed that all of the above does not erode arguably the most important point Finnis makes. The connection between law and morality may very well exist in degrees. Perhaps this assertion is even something that different strands of legal theory might agree upon.
Lorenzo Zoppellari, University of Trento
The Process: A Dialogue between the Norm and its “Defeasibility”
The argumentative turn of juridical studies leaded to a radical change in the perspective, about the role of the process and the nature of juridical norms. By underlining the role played by the parties and taking a cue from the studies about informal logic (particularly Douglas Walton’s), our aim is to intend the process not only as a place where different interpretations about the application of the norm (or the reconstruction of a fact) are in conflict, but rather as the space where a dialectic conflict, rhetorically guided and oriented, takes place between who defends the norm and who, otherwise, proposes a particular kind of “defeasibility”. According to us, in this way we can reach two different results, both strongly linked to each other: firstly, norms are no more conceived as the center of the juridical experience but as categories which allow all the parties to build the legal dialogue; secondly, overturning the traditional perspective, the center of the judgement is not the application of the norms anymore (that would lead to a formal scheme), but their possible “defeasibility” in the specific case.
Viktorija Soneca, University of Latvia
Limits of the principle of primacy of European Union law
The principle of primacy of European Union (EU) law is one of the fundamental principles of EU law,1 which was established in 1964 by the Court of Justice of the European Union’s (CJEU) caselaw2 , but was not written down in the EU founding Treaties and even now isn’t encompassed in 1 Judgment of the Court of 17 December 1970 in case C-11/70 Internationale Handelsgesellschaft mbH v Einfuhr - und Vorratsstelle für Getreide und Futtermittel, ECLI:EU:C:1970:114, paragraph 3. 2 Judgment of the Court of 5 February 1963 in case C-26/62 Van Gend en Loos v Administratie der Belastingen, ECLI:EU:C:1963:1, p. 12; judgment of the Court of 15 July 1964 in case C-6/64 Costa v E.N.E.L., p. 594. the Treaty on the Functioning of the European Union or Treaty on European Union (TEU).3 Although there was an attempt to embody the principle of primacy in the Treaty establishing a Constitution for Europe,4 such attempt wasn’t successful as this Treaty did not enter into force and was replaced by the Treaty of Lisbon,5 which does not contain any reference to the principle of primacy. Only a Declaration6 , which contrary to the protocols to the EU Treaties is not binding, annexed to the Treaty of Lisbon refers to the principle of primacy. In accordance with a Declaration, the EU Treaties and the law adopted by the EU on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by well settled case law of the CJEU.7 The Declaration further refers to an Opinion of the Legal Service of the Council on the primacy of EU law from 2007, which identifies the principle of primacy as a cornerstone principle of the EU law and states that the fact that the principle of primacy is not included in the Treaty of Lisbon does not change the existence of the principle and the existing case-law of the CJEU.8 It must be stressed that, although Declaration does not state anything about the principle of primacy in connection with national constitutional law, from wording and CJEU’s case law9 it must be understood that the principle of primacy covers even constitutional law of Member States.10 Therefore, on the one hand, as the main goal of the principle of primacy is to assure a unified and effective application of EU law in all Member States, such view is certainly the right one. However, on the other hand, aforementioned view invokes two questions. First, about Article 4 (2) of TEU, which protects national identities of Member States, and, second, about boundaries of the principle of primacy in national legal systems. According to Article 4(2) of TEU EU must respect the equality of Member States before the Treaties, as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.11 Such duty of EU has been included already in the Maastricht Treaty,12 and that means it’s not something completely new and 3 Trstenjak V. National Sovereignity and the Principle of Primacy in EU Law and Their Importance for the Member States. Beijing Law Review, 2013. Vol. 4, No. 2, p. 72. 4 Treaty establishing a Constitution for Europe, OJ C 310, 16.12.2004, p. 1 - 474. 5 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306, 17.12.2007, p. 1 - 271. 6 Consolidated version of the Treaty on the Functioning of the European Union - DECLARATIONS annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 - A. DECLARATIONS CONCERNING PROVISIONS OF THE TREATIES - 17. Declaration concerning primacy. OJ C 115, 9.5.2008, p. 344. 7 Ibidem. 8 Trstenjak V. National Sovereignity and the Principle of Primacy in EU Law and Their Importance for the Member States. Beijing Law Review, 2013. Vol. 4, No. 2, p. 73. 9 For example, Judgment of the Court of 26 February 2013 in case C-399/11 Melloni, ECLI:EU:C:2013:107, paragraph 59; Judgment of the Court of 9 March 1978 in case C-106/77 Amministrazione delle finanze dello Stato v Simmenthal, ECLI:EU:C:1978:49, paragraph 21. 10 Cuyvers A. The Scope, Nature and Effect of EU Law. East African Community Law: Institutional, Substantive and Comparative EU Aspects. Edited by Cuyvers A. et al., Brill, Leiden; Boston, 2017, p. 176. 11 OJ C 326, 26.10.2012, p. 13. 12 "Treaty on European Union." European Union Treaties: Treaty on European Union Treaty on the Functioning of the European Union. Ed. Geiger R., Khan D. and Kotzur M. London: Hart Publishing, 2015. p. 22. unknown. And although it seems to be a crystal clear that the principle of primacy of EU law can be limited in case of Member State’s “national identity”, almost all constitutional courts of Member States have declared their own limits to this principle.13 Even the Belgian Constitutional Court has expressed a view that it does not fully accept the position of CJEU concerning the primacy of EU law over national constitution.14 To be precise, the Belgian Constitutional Court made three statements about the hierarchy, concentrating its attention on Article 34 of the Constitution15 , namely, “[f]irst, the hierarchy is not governed by EU law, but rather by Article 34 of the Constitution. Second, Article 34 of the Constitution ranks secondary EU law higher than the Constitution. Third, this primacy is limited by the three aforementioned standards.”16 Hence, the Belgian Constitution is the highest norm. In this context it must be kept in mind that the EU and the national legal orders are founded on the same fundamental legal values, and while it’s a duty of the national courts to guarantee the observance of those values within the scope of their constitutions, it is the responsibility of the CJEU to do likewise within the EU legal order.17 However, it also must be stressed that the represented idea is slightly utopian in the context of constitutional courts, as, it seems, that CJEU forgets about the significant role of constitutional courts in the national context, even though CJEU and constitutional courts “share the responsibility of protecting fundamental rights and the basic principles”18 . Therefore author in this paper will discuss coverage of the principle of primacy of EU law versus Member States’ national identity by not only analyzing development of the principle of primacy of EU law by CJEU’ case-law, but also focusing on its importance in the Member States and its limits (for example, res judicata principle). Then author will analyze such terms as “national identity” and “constitutional identity”, as concept “constitutional identity” have been used to identify what 13 For example, Germany’s Federal Constitutional Court in Honeywell case stated that the supremacy of EU law is based on Article 23(1) of the Basic Law for the Federal Republic of Germany (German Constitution), however, the supremacy of EU law is not comprehensive in relation to fundamental rights, competence and constitutional identity. Poland’s Constitutional Tribunal in judgment of 11 May 2005 (Ref. No. K 18/04) held that accession of Poland to the EU did not undermine the supremacy of the Constitution over the whole legal order within the end of sovereignty of the Republic of Poland. The norms of the Constitution, being the supreme act, which is an expression of the Nation’s will, would not lose their binding force or change their content by the mere fact of an irreconcilable inconsistency between these norms and any Community provision. In such a situation, the autonomous decision as regards the appropriate manner of resolving that inconsistency, including the expediency of a revision of the Constitution, belongs to the Polish constitutional legislator. 14 Belgian Constitutional Court’s judgment No. 62/2016, 28 April 2016 (summary). Available: http://www.constcourt.be/en/common/home.html. 15 Article 34 of the Belgian Constitution states that the “exercising of specific powers can be assigned by a treaty or by a law to institutions of public international law”. 16 Gérard P. & Verrijdt W. Belgian Constitutional Court Adopts National Identity Discourse. Available: http://constituante.be/wp-content/uploads/2017/03/Gerard_Verrijdt_Belgian-Constitutional-Court-Adopts-NationalIdentity-Discourse.pdf, p. 193. 17 Opinion of Advocate General P. Maduro delivered on 21 May 2008 in case C-127/07 Arcelor Atlantique and Lorraine and Others, ECLI:EU:C:2008:292, paragraph 15. 18 Monica Claes, Luxembourg, Here We Come? Constitutional Courts and the Preliminary Reference Procedure. Available: http://heinonline.org/HOL/LandingPage?handle=hein.journals/germlajo16&div=66&id=&page=, p. 1334. is protected by Article 4(2) of TEU, even thought, Article 4(2) of TEU refers only to Member States’ national identity, inherent in their fundamental structures.
Matej Avbelj, New University
The Role of Judicial Ideology in Judicial Decision-making
This presentation will address two research questions. First, what is judicial ideology? Second, what is the role of judicial ideology in a legal system, concretely in the process of judicial decisionmaking? The presentation will be broken down into two parts. Initially we will define judicial ideology by delineating it from a general notion of ideology and consequently by differentiating it from judicial philosophy. It will be also argued that judicial ideology should be better understood in multidimensional rather than binary terms. This will enable us, in the second part, to hypothesize about the potential role of judicial ideology in the process of judicial decision-making. It will be argued that with regard to this question three conceptions of the role of judicial ideology in law exist and that, if opting for a discursive conception, the relevance of judicial ideology in the practice of courts can be quite meaningful.
Janez Šušteršič, Reforma Ltd.
Ideology in Legal Argumentation
The paper will present a novel methodology to assess judges' ideological positions along three distinct dimension. The methodology was developed within the project 'Ideology on the Courts' which focuses on ideological positions of judges in the Slovenian constitutional court. It is based on content analysis of argumentation used in courts' writings, that is the reasons of the decision and any available separate opinions. The merits of this essentially qualitative methodology will be compared with the prevalent exisiting approaches, which either use a mechanical coding of votes or take the ideology of the appointing authority as a proxy for the ideology of the appointed judge. Some illustrative cases of how ideology is revealed through judges' argumentation will be discussed in more detail.
Hanna Maria Kreuzbauer, University of Salzburg
A Theory of Rationality
This paper presents the final version of the theory of rationality developed by the author in the last ten years. It consists of the following parts: 1.) Theory a) The concept of rationality: Rationality as a property of justifying argumentation and as optimization of the use of evidence resources b) Rationality in the context of the history of philosophy and science: From mythos to logos, from logos to Scholastic logic, from divine logic to Rationalism and pure reason, from rationalism to neo-rationalism, from neo-rationalism to neo-realism, and all of them against postmodernity c) The roots: Self-justifying foundations of rationality: The theorem of non-contradiction and other theorems from ontology, epistemology, theory of language and logic 2.) Operationalization a.) Types of justification: Analytical justification and other kinds of justification, esp. justification by reasoning (in particular also analytical and synthetic justification) b.) The technique of argumentation, in particular the modelling of ontic existential links c.) Quality management of argumentation: correspondence, trustworthiness, strength and rationality d.) Direct and indirect justification e.) Justification by the technique of the least bad alternative (LBAT) f.) The technique of the least bad alternative applied to normative justification tasks: the HUMAX principle
Luka Burazin, University of Zagreb
Legal Office
The paper aims to explicate what kind of entity legal offices are and what their specific mode of existence amounts to. That is, it aims to explicate in virtue of what legal offices can be said to exist. Also, it aims to explain in virtue of what these offices can be said to be legal. While the basic idea rests on an antirealist ontological position, according to which artifacts, and thus, per hypothesis, legal offices, depend on the human mind (i.e., they are mind-dependent entities) in the sense that the mental states of the authors of artifacts and the concepts on which these states are based are (at least partly) constitutive of their existence, the paper strives to show the relevance of the actual use of legal offices for their existence. The paper first sets out the initial concept of legal office as found in ordinary legal discourse (Section 2). It then makes a distinction between original and derived legal offices in order to account for the relevant differences between the offices of the first constitution-maker, legislature and judiciary, in particular with regard to the issue of what makes them legal (Section 3). This is followed by the explication of that in virtue of which legal offices can be said to exist and how they should ontologically best be understood (Section 4). Finally, the paper analyzes the way in which legal officials as officeholders, and their carrying out the deontic powers conferred on them, can be said to affect the existence of legal offices (Section 5).
Rok Svetlič, Law Institute, Science and Research Centre Koper Compatibility of Religion and the State – Problem of Interpretation of Constitution
The article is dedicated to the problem of the compatibility of the secular state and religion, which, in the face of mass migration to Europe, has again become actual. The author highlights the process of reconciliation between these phenomena as a sine qua non of Western democratic culture and shows its development. Therefore, the current problems in this area are not the result of a lack of theoretical concepts but of their non-use. The main role in this is the concept of a general will, which does not belong to anyone and thus does not risk the objection of exclusory discourse. It turns out that the general will recognizes to the individual the existence of the right to religion and its manifestation, as well it determines the limits of this right. This right is not a bianco-clause, which would be subsequently filed by the feelings of a religious person or religious dogma, this is precisely the main source of problems related to the religion of immigrants. A secular society contains moral standards that determine what does it means to be religious in a secular society.
Vojko Strahovnik, Jonas Miklavčič, University of Ljubljana Drago Bokal, University of Maribor Simona Drenik Bavdek, Catholic Institute
Transparency in AI’s Decision Making: Some Ethical and Legal Reflections
One of the most common requirements within the ethics of artificial intelligence (AI) is the provision that once an AI system begins to operate within the social context and where such operation replaces all or some aspects of the cognitive work previously performed by human agents, such a system inherits the ethical and social requirements that beforehand pertained to the latter. Decision-making inevitably falls within the scope of such cognitive tasks, and, furthermore, seems to be a domain where the role of AI systems and algorithms are on the rise. In the paper, we are going to examine the scope of such requirements which broadly fall within this scope. In particular, we will focus on the requirement of transparency. Here, there are several interesting dialectical directions one can investigate. On the one hand, there is a challenging question of what transparency is and how to establish it in relation to AI systems. On the one hand, our initial sceptical worries about transparency in AI systems might lead us to reconsider the transparency in ordinary, i.e. human decision making. Here we will touch upon the question of the transparency of decision-making of group agents (e.g. large corporations and governments).
Ivana Tucak, University of Osijek
Informed Consent as a Human Right
The concept of a patient’s informed consent has enticed a number of scholarly discussions and controversies. Regarding legal scholarship and bioethics, there is no consensus about its meaning and content. It is a dynamic doctrine emerged in US case-law in the second half of the 20th century. Although it is a relatively new concept, there are still initiatives for its reconceptualization. Nowadays, there is a growing number of authors who claim that there is a fair consensus among member states of the Council of Europe not only on the right of an adult competent patient to provide informed consent to any medical intervention but also on his/her right to reject it even if such rejection will put his/her life in danger. Those authors also believe that the European Court of Human Right should monitor if national legal regimes respect this principle (Isra Black). This right is primarily perceived through the prism of Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although the value of individual autonomy is not absolutely protected (Article 8 paragraph 2), pursuant to the case-law of the European Court of Human Rights, personal decisions on the health of an adult competent patient should be respected regardless of their irrationality or the fact that they are not in the patient’s best interest. This paper is aimed at reexamining arguments pro and contra this individualistic approach to informed consent, which puts the emphasis on the self-determination of an individual and the right not to interfere with his/her choices in medical law cases.
Marko Novak, New University Judicial Rhetoric as Third Criteria of Justifying Judicial Decisions A standard topic in legal argumentation theory is the justification of legal/judicial decisions. Two sets of criteria have so far been developed: ‘logical’ within the so-called internal or first-order level of justification, and ‘dialectical’ within the so-called external or second-order level of justification. The role of the external criteria is to justify the internal criteria in case of their doubtful premises in hard cases. But are there any other criteria, in addition to the two mentioned, to justify the external ones, in very hard cases, in which the external criteria need their own justification of “necessary” application. I claim this role is taken by the so-called rhetorical criteria, when rhetoric is understood in a normative sense.
Luka Martin Tomažič, Alma Mater Europaea Finnis’s Natural Law Theory: Incommensurability of Values, Common Good and Privatio Boni This paper will critically analyse the natural law theory of Finnis. First his theory will be briefly presented. Then certain important flaws will be pointed out. Only those issues, which have not yet been discussed in depth in the relevant literature or which need further clarification, will be emphasized. The first pertains to the incompatibility of the focal meaning of law with Finnis’s statement regarding the incommensurability of values. If values are indeed incommensurable, then the focal meaning of law cannot be known. According to Finnis, law namely exists in degrees and is intimately connected with the notion of common good. The latter in turn consists of a plethora of different values. Furthermore, other values had to be deemed as less good in order to arrive at such a conception. Secondly, Finnis’s idea of common good, as he formulates it, is too opaque. He uses seven basic goods to explain the concept. These are however posited as notions with unlimited semantic range. It is possible to choose between them seemingly at will in order to ascertain common good in individual cases of law. Thus, to paraphrase Bentham, the focal meaning of law in Finnis is simply the focal meaning of ‘what I like’. Thirdly, his theory omits too much. His privatio boni inspired idea of law being less legal, if it does not promote the common good, is based on an intuitive judgement. What he is actually doing is substituting the notion of ‘congruence with morality’ with the somewhat awkward notion of Law (as contrasted with law without capital L). In this sense, he has not really addressed the objections to classical natural law theories, but merely presented a smokescreen, which has allowed him to sidestep them. Lastly, potential solutions to above problems will be discussed in light of his theory. It will be claimed that all of the above does not erode arguably the most important point Finnis makes. The connection between law and morality may very well exist in degrees. Perhaps this assertion is even something that different strands of legal theory might agree upon.
Lorenzo Zoppellari, University of Trento
The Process: A Dialogue between the Norm and its “Defeasibility”
The argumentative turn of juridical studies leaded to a radical change in the perspective, about the role of the process and the nature of juridical norms. By underlining the role played by the parties and taking a cue from the studies about informal logic (particularly Douglas Walton’s), our aim is to intend the process not only as a place where different interpretations about the application of the norm (or the reconstruction of a fact) are in conflict, but rather as the space where a dialectic conflict, rhetorically guided and oriented, takes place between who defends the norm and who, otherwise, proposes a particular kind of “defeasibility”. According to us, in this way we can reach two different results, both strongly linked to each other: firstly, norms are no more conceived as the center of the juridical experience but as categories which allow all the parties to build the legal dialogue; secondly, overturning the traditional perspective, the center of the judgement is not the application of the norms anymore (that would lead to a formal scheme), but their possible “defeasibility” in the specific case.
Viktorija Soneca, University of Latvia
Limits of the principle of primacy of European Union law
The principle of primacy of European Union (EU) law is one of the fundamental principles of EU law,1 which was established in 1964 by the Court of Justice of the European Union’s (CJEU) caselaw2 , but was not written down in the EU founding Treaties and even now isn’t encompassed in 1 Judgment of the Court of 17 December 1970 in case C-11/70 Internationale Handelsgesellschaft mbH v Einfuhr - und Vorratsstelle für Getreide und Futtermittel, ECLI:EU:C:1970:114, paragraph 3. 2 Judgment of the Court of 5 February 1963 in case C-26/62 Van Gend en Loos v Administratie der Belastingen, ECLI:EU:C:1963:1, p. 12; judgment of the Court of 15 July 1964 in case C-6/64 Costa v E.N.E.L., p. 594. the Treaty on the Functioning of the European Union or Treaty on European Union (TEU).3 Although there was an attempt to embody the principle of primacy in the Treaty establishing a Constitution for Europe,4 such attempt wasn’t successful as this Treaty did not enter into force and was replaced by the Treaty of Lisbon,5 which does not contain any reference to the principle of primacy. Only a Declaration6 , which contrary to the protocols to the EU Treaties is not binding, annexed to the Treaty of Lisbon refers to the principle of primacy. In accordance with a Declaration, the EU Treaties and the law adopted by the EU on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by well settled case law of the CJEU.7 The Declaration further refers to an Opinion of the Legal Service of the Council on the primacy of EU law from 2007, which identifies the principle of primacy as a cornerstone principle of the EU law and states that the fact that the principle of primacy is not included in the Treaty of Lisbon does not change the existence of the principle and the existing case-law of the CJEU.8 It must be stressed that, although Declaration does not state anything about the principle of primacy in connection with national constitutional law, from wording and CJEU’s case law9 it must be understood that the principle of primacy covers even constitutional law of Member States.10 Therefore, on the one hand, as the main goal of the principle of primacy is to assure a unified and effective application of EU law in all Member States, such view is certainly the right one. However, on the other hand, aforementioned view invokes two questions. First, about Article 4 (2) of TEU, which protects national identities of Member States, and, second, about boundaries of the principle of primacy in national legal systems. According to Article 4(2) of TEU EU must respect the equality of Member States before the Treaties, as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.11 Such duty of EU has been included already in the Maastricht Treaty,12 and that means it’s not something completely new and 3 Trstenjak V. National Sovereignity and the Principle of Primacy in EU Law and Their Importance for the Member States. Beijing Law Review, 2013. Vol. 4, No. 2, p. 72. 4 Treaty establishing a Constitution for Europe, OJ C 310, 16.12.2004, p. 1 - 474. 5 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306, 17.12.2007, p. 1 - 271. 6 Consolidated version of the Treaty on the Functioning of the European Union - DECLARATIONS annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 - A. DECLARATIONS CONCERNING PROVISIONS OF THE TREATIES - 17. Declaration concerning primacy. OJ C 115, 9.5.2008, p. 344. 7 Ibidem. 8 Trstenjak V. National Sovereignity and the Principle of Primacy in EU Law and Their Importance for the Member States. Beijing Law Review, 2013. Vol. 4, No. 2, p. 73. 9 For example, Judgment of the Court of 26 February 2013 in case C-399/11 Melloni, ECLI:EU:C:2013:107, paragraph 59; Judgment of the Court of 9 March 1978 in case C-106/77 Amministrazione delle finanze dello Stato v Simmenthal, ECLI:EU:C:1978:49, paragraph 21. 10 Cuyvers A. The Scope, Nature and Effect of EU Law. East African Community Law: Institutional, Substantive and Comparative EU Aspects. Edited by Cuyvers A. et al., Brill, Leiden; Boston, 2017, p. 176. 11 OJ C 326, 26.10.2012, p. 13. 12 "Treaty on European Union." European Union Treaties: Treaty on European Union Treaty on the Functioning of the European Union. Ed. Geiger R., Khan D. and Kotzur M. London: Hart Publishing, 2015. p. 22. unknown. And although it seems to be a crystal clear that the principle of primacy of EU law can be limited in case of Member State’s “national identity”, almost all constitutional courts of Member States have declared their own limits to this principle.13 Even the Belgian Constitutional Court has expressed a view that it does not fully accept the position of CJEU concerning the primacy of EU law over national constitution.14 To be precise, the Belgian Constitutional Court made three statements about the hierarchy, concentrating its attention on Article 34 of the Constitution15 , namely, “[f]irst, the hierarchy is not governed by EU law, but rather by Article 34 of the Constitution. Second, Article 34 of the Constitution ranks secondary EU law higher than the Constitution. Third, this primacy is limited by the three aforementioned standards.”16 Hence, the Belgian Constitution is the highest norm. In this context it must be kept in mind that the EU and the national legal orders are founded on the same fundamental legal values, and while it’s a duty of the national courts to guarantee the observance of those values within the scope of their constitutions, it is the responsibility of the CJEU to do likewise within the EU legal order.17 However, it also must be stressed that the represented idea is slightly utopian in the context of constitutional courts, as, it seems, that CJEU forgets about the significant role of constitutional courts in the national context, even though CJEU and constitutional courts “share the responsibility of protecting fundamental rights and the basic principles”18 . Therefore author in this paper will discuss coverage of the principle of primacy of EU law versus Member States’ national identity by not only analyzing development of the principle of primacy of EU law by CJEU’ case-law, but also focusing on its importance in the Member States and its limits (for example, res judicata principle). Then author will analyze such terms as “national identity” and “constitutional identity”, as concept “constitutional identity” have been used to identify what 13 For example, Germany’s Federal Constitutional Court in Honeywell case stated that the supremacy of EU law is based on Article 23(1) of the Basic Law for the Federal Republic of Germany (German Constitution), however, the supremacy of EU law is not comprehensive in relation to fundamental rights, competence and constitutional identity. Poland’s Constitutional Tribunal in judgment of 11 May 2005 (Ref. No. K 18/04) held that accession of Poland to the EU did not undermine the supremacy of the Constitution over the whole legal order within the end of sovereignty of the Republic of Poland. The norms of the Constitution, being the supreme act, which is an expression of the Nation’s will, would not lose their binding force or change their content by the mere fact of an irreconcilable inconsistency between these norms and any Community provision. In such a situation, the autonomous decision as regards the appropriate manner of resolving that inconsistency, including the expediency of a revision of the Constitution, belongs to the Polish constitutional legislator. 14 Belgian Constitutional Court’s judgment No. 62/2016, 28 April 2016 (summary). Available: http://www.constcourt.be/en/common/home.html. 15 Article 34 of the Belgian Constitution states that the “exercising of specific powers can be assigned by a treaty or by a law to institutions of public international law”. 16 Gérard P. & Verrijdt W. Belgian Constitutional Court Adopts National Identity Discourse. Available: http://constituante.be/wp-content/uploads/2017/03/Gerard_Verrijdt_Belgian-Constitutional-Court-Adopts-NationalIdentity-Discourse.pdf, p. 193. 17 Opinion of Advocate General P. Maduro delivered on 21 May 2008 in case C-127/07 Arcelor Atlantique and Lorraine and Others, ECLI:EU:C:2008:292, paragraph 15. 18 Monica Claes, Luxembourg, Here We Come? Constitutional Courts and the Preliminary Reference Procedure. Available: http://heinonline.org/HOL/LandingPage?handle=hein.journals/germlajo16&div=66&id=&page=, p. 1334. is protected by Article 4(2) of TEU, even thought, Article 4(2) of TEU refers only to Member States’ national identity, inherent in their fundamental structures.