European Legality and Jurisdictional Justification: How the ECJ Should Determine the Legality of Legislation under Art. 114 TFEU
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Description
One of the blind spots of the reflection on European constitutionalism in the past decades has been the transformation of the idea of legality as it is reflected in the reasoning of the European Court of Justice (ECJ) and many national constitutional courts. Whereas during much of the late nineteenth and twentieth century legal practice and legal scholarship was dominated by a positivist style, focused on sources and tying legal analysis to those sources by reference to established canons of construction, there are central features of current constitutional practice that do not fit that description. Furthermore it would be a mistake to believe that the positivist style has simply been replaced by a well-known alternative. The dominant conception of constitutional legality has relatively little in common either with the freewheeling approaches advocated by, say, the Freirechtsschule or American style Pragmatism. What has replaced it—call it the European conception of legality—is a conception that is characterised by three distinctive features. First, the idea of legality is tied to constitutional requirements that are subject to judicial review. Legality properly so called is judicially enforceable constitutional legality. Second, these constitutional requirements may or may not be embodied in a constitutional text. To a large extent constitutional requirements are derived and applied without reference to a constitutional text that is engaged using the usual canons of legal reasoning. Call this the detextualisation of European constitutional legality. Third, the basic principles of liberal democracy provide the foundations and teleology for a conception of law as institutionalised practical reason. The constitutional requirements are often articulated in the form of highly abstract principles—think of the four freedoms or the classic human rights guarantees. In light of these principles courts assess whether there is a plausible justification for acts undertaken by public authorities. This requires courts to engage in contextualised general practical reasoning. It follows that constitutional legality as it is understood in Europe provides courts with the power to assess whether law´s claim to legitimate authority can be vindicated by way of assessing the plausibility of reasons underlying acts of European public authority. Such a conception of legality incorporates pragmatic or ‘natural law’ elements, but cannot be reduced to that alone. The ubiquity and centrality of the principle of proportionality in European law is perhaps the clearest evidence for a conception of legality that opens itself up to general practical reason. Proportionality becomes the central tool that lawyers use as a formally disciplining, substantively radically indeterminate conceptual framework for the contextualised analysis of complex issues of policy. Whether a particular law makes good on law’s claim to legitimate authority is not a question exclusively to be debated and negotiated in the context of political struggle or acts of individual resistance. Instead that practice of contestation becomes an integral element of litigation and legal critical self-reflection by the core institutions of legal reasoning—the law courts and the law faculties—for example by assessing the proportionality of a particular act of legislation. To some extent political and legal deliberation and contestation occupy the same normative space. There is a qualification, however: Law’s capacity to reflect on itself in terms of practical reason is constrained by a commitment to liberal democracy that, for the purpose of legal argument, has to be understood in a way that is roughly compatible with existing basic institutional arrangements and practices, to be legally plausible. These limitations have their basis in the limited institutional role of legal institutions. Courts and law faculties do not have the clout or legitimacy associated with governments or political parties. Legal institutions do have an epistemic comparative advantage compared to other institutions that in part accounts for their legitimacy, but that advantage does not extend to foundational issues of political philosophy or concerning the requirements of justice. Instead the comparative advantage of legal institutions stems from their critical and constructive focus on the coherence of legal practice, across levels of abstraction, subject matter, areas and time. Courts, when they resolve disputes and scholars, when they reflect on doctrine, reflect upon the justification on decisions in order to help establish coherence between and fine-tune decisions made by others.
Source Publication
Hope, Reluctance or Fear?: The Democratic Consequences of the Case Law of the European Court of Justice
Source Editors/Authors
Flavia Carbonell, Agustín José Menéndez, John Erik Fossum
Publication Date
2011
Recommended Citation
Kumm, Mattias, "European Legality and Jurisdictional Justification: How the ECJ Should Determine the Legality of Legislation under Art. 114 TFEU" (2011). Faculty Chapters. 1066.
https://gretchen.law.nyu.edu/fac-chapt/1066
