Gunnar Beck - Hart Publishing, 2012
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The book is divided into two parts. Part one develops a new heuristic
theory of legal reasoning which argues that legal uncertainty is a pervasive and
inescapable feature of primary legal material and judicial reasoning alike,
which has its origin in a combination of linguistic vagueness, value pluralism
and rule instability associated with precedent. Part two examines the
jurisprudence of the Court of Justice of the EU against this theoretical
framework. The author demonstrates that the ECJ's interpretative reasoning is
best understood in terms of a tripartite approach whereby the Court justifies
its decisions in terms of the cumulative weight of purposive, systemic and
literal arguments. That approach is more in line with orthodox legal reasoning
in other legal systems than is commonly acknowledged and differs from the
approach of other higher, especially constitutional courts, more in degree than
in kind. It nevertheless leaves the Court considerable discretion in determining
the relative weight and ranking of the various interpretative criteria from one
case to another. The Court's exercise of its discretion is best understood in
terms of the constraints imposed by the accepted justificatory discourse and
certain extra-legal steadying factors of legal reasoning, which include a range
of political factors such as sensitivity to Member States' interests, political
fashion and deference to the 'EU legislator'. In conclusion, the Court of
Justice of the EU has used the flexibility inherent in its interpretative
approach and the choice it usually enjoys in determining the relative weight and
order of the interpretative criteria at its disposal, to resolve legal
uncertainty in the EU primary legal materials in a broadly communautaire fashion
subject, however, to i) regard to the political, constitutional and budgetary
sensitivities of Member States, ii) depending on the constraints and extent of
interpretative manoeuvre afforded by the degree of linguistic vagueness of the
provisions in question, the relative status of and degree of potential conflict
between the applicable norms, and the range and clarity of the interpretative
topoi available to resolve first-order legal uncertainty, and, finally, iii)
bearing in mind the largely unpredictable personal element in all adjudication.
Only in exceptional cases which the Court perceives to go to the heart of the
integration process and threaten its acquis communautaire, is the Court of
Justice likely not to feel constrained by either the wording of the norms in
issue or by the ordinary conventions of interpretative argumentation, and to
adopt a strongly communautaire position, if need be in disregard of what the
written laws says but subject to the proviso that the Court is assured of the
express or tacit approval or acquiescence of national governments and courts.
