Brian Bix, Kelsen and Normativity Revisited (June 28, 2013). Carlos Bernal & Marcelo Porciuncula (eds.), Festschrift for Stanley L. Paulson (Marcial Pons, Forthcoming); Minnesota Legal Studies Research Paper 13-27. Available at SSRN
Central to Hans Kelsen’s work (and the work of many other legal theorists of the past century ) is the idea that law is a normative system, and that any theory about the nature of law must focus on its normativity. There are familiar questions connected with explaining legal normativity: e.g., What is the connection between legal normativity and other normative systems, in particular, morality? And there are methodological questions: when theorists claim that we need to (and that they will) “explain the normativity of law,” what is it that is being explained? This paper focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and H. L. A. Hart and later commentators on their theories.
In Part I, I offer a view regarding the nature of law and legal normativity that I believe could reasonably be read off of some of Kelsen’s work. The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative way. In this Kelsenian system, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality.
Part II turns to Hart’s theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach will raise questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. I show how, instead, a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may in fact work better than current conventional (morally-focused) understandings.
Tecla Mazzarese, FORME DI RAZIONALITÀ DELLE DECISIONI GIUDIZIALI, 2012 – pp. 223 – € 12,00 – ISBN 978-88-348-2921-9, G. Giappichelli editore [editia 1996]
Prefazione. – 0. Introduzione. – 1. Termini per una critica del sillogismo giudiziale. – 2. Costitutività vs. dichiaratività delle decisioni giudiziali. – 3. Scoperta e giustificazione nelle decisioni giudiziali. – 4. Logica fuzzy e presunto irrazionalismo normativo. – 5. Fuzziness e decisioni giudiziali. – 6. Decisioni giudiziali e ragionamento approssimato. – Riferimenti bibliografici.
Sylvain Brouard, Olivier Costa, Thomas König (Eds.), The Europeanization of Domestic Legislatures. The Empirical Implications of the Delors’ Myth in Nine Countries, Springer, 2012, VIII, 244 p. 41 illus., 30 in color.
Table of contents [pdf.]
– Addresses several strong theses, including those of G. Majone, A. Moravcsik, and Martin and Vanberg, about Europeanization and legislation
– Includes an annex with extensive quantitative data on law Europeanization, detailed by country, type of norm, topic, period of time, etc
– Provides a method by which to measure Europeanization
In ten years 80 per cent of the legislation related to economics, maybe also to taxes and social aff airs, will be of Community origin.” This declaration has been largely quoted, paraphrased and deformed by different authors, creating a persistent myth according to which 80% of the legislative activity of the national legislatures would soon be reduced to the simple transposition of European norms”. This book addresses the topic of the scope and impact of Europeanization on national legislation, as a part of the Europeanization debate which raises normative concerns linked to the “democratic deficit” debate. The state of the art shows that there are many assumptions and claims on how European integration may affect national legislation and, more generally, domestic governance but that there is a lack of solid and comparative data to test them. The aim of the book is to give a solid and comparative insight into Europeanization focusing on effective outcomes in a systematic way. This book analyzes the period 1986-2008 and includes an introduction, a global overview of European legislative activities which set the background for Europeanization of national legislatures, 9 country contributions (8 EU member states + Switzerland) including systematic, comparative and standardized data, tables and figures, and a conclusion with a comparative analysis of the European and domestic reasons for Europeanization.
All national contributions conclude that Europeanization of national legislation is much more limited than assumed in the literature and public debate. It is limited to 10 to 30% of laws (depending on the country), far less than the 80% predicted by Jacques Delors and mentioned daily by medias and public opinion leaders to demonstrate EU domination on member states. Beside that general statement, the various chapters propose a deep insight on EU constraint over national legislation, providing much information on the kind of laws and policies that are Europeanized, the evolution of this process through time, the impact of Europeanization on the balance of powers and the relations between majority and opposition at national level, the strategies developed by national institutions in that context, and many other issues, making the book of inter
Yasuhiro Shigeta, The ECJ’s ‘Hard’ Control over Compliance with International Environmental Law: Its Procedural and Substantive Aspects, International Community Law Review, Volume 11, Number 3, September 2009, pp. 251-305.
This study shows that the ECJ, while not directly applying and interpreting environmental treaties, exercises procedurally and substantively ‘hard’ control over compliance with EC legislation implementing those treaties, in the fields of nature conservation and hazardous waste management, on certain conditions and within certain limits. This study also shows that the ECJ’s acknowledgment of its exclusive jurisdiction on the marine environment as seen in the 2006 MOX Plant case has contradictory effect on its substantively ‘hard’ control: such acknowledgment, although being a plus factor where there is no Community measure, becomes a minus factor since it in practice means that there already exist Community measures. Although the above observations are also instructive to other international judiciaries’ study, structural and situational differences should be considered.
Sau cum ar veni „the use of foreign law & doctrine in American courts”…Ori despre modele de „fédéralisme d’exécution„.
„The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central „federal” body.”
Supreme Court of United States, 521 U.S. 898, Printz v. United States, 95-1478 Argued: December 3, 1996 – Decided: June 27, 1997. Justice Breyer, with whom Justice Stevens joins, dissenting.