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Judicial Legitimacy without Borders

Dates:
  • Tue 28 Mar 2017 17.00 - 19.00
  Add to Calendar 2017-03-28 17:00 2017-03-28 19:00 Europe/Paris Judicial Legitimacy without Borders

In a recent volume promising to be ‘Judging European Judges’, Joseph Weiler expressed scepticism towards the use of the concept of legitimacy in such exercise. In his view ‘there is simply not enough agreement to be able to use it in a broadly and meaningfully accepted way’. This paper is an attempt to suggest an opposite view and show how the concept of legitimacy can be used to understand the ECJ’s place in the EU political system. In my view, as long as people are clear about their understanding of the concept, legitimacy can serve as a focal point around which scholarly, and hopefully also public, debate potentially revolves. Indeed, the very disagreements about legitimacy’s precise meaning have a potential to generate debate and invite engagement from different sides. This can facilitate mutual understanding – or at least clarification of mutually irreconcilable conflicting positions – and establish political legitimacy of a sort itself. The key is to have some sophisticated account of legitimacy at hand. Here one must agree with Weiler in his diagnosis of lawyers’ use of the concept as a proxy to something else: ‘factors that enhance or detract from the authority or authoritativeness of judicial decisions and of the Court’. I will argue that legitimacy should be taken to mean much more than that.

The paper therefore begins with some reflections on the concept of legitimacy, as it is used in the debates on the EU and its judicial system, particularly the ECJ. In the following section, I will seek to present a framework for studying the ECJ’s legitimacy, which does justice to its dual role: to decide particular cases and at the same time to fulfil much wider functions in the EU political system. The third section then focuses on the perennial problem of judicial legitimacy in the Western legal tradition: how to legitimize creative moments of judicial interpretation of law, which are at the same time unavoidable and deeply problematic for what is sometimes called the liberal doctrine of politics? The fourth section looks in some detail on the recent turn to semantic pragmatism and its relationship to the democratic theory and discusses some of its shortcomings.

Sala Europa, Villa Schifanoia DD/MM/YYYY
  Sala Europa, Villa Schifanoia

In a recent volume promising to be ‘Judging European Judges’, Joseph Weiler expressed scepticism towards the use of the concept of legitimacy in such exercise. In his view ‘there is simply not enough agreement to be able to use it in a broadly and meaningfully accepted way’. This paper is an attempt to suggest an opposite view and show how the concept of legitimacy can be used to understand the ECJ’s place in the EU political system. In my view, as long as people are clear about their understanding of the concept, legitimacy can serve as a focal point around which scholarly, and hopefully also public, debate potentially revolves. Indeed, the very disagreements about legitimacy’s precise meaning have a potential to generate debate and invite engagement from different sides. This can facilitate mutual understanding – or at least clarification of mutually irreconcilable conflicting positions – and establish political legitimacy of a sort itself. The key is to have some sophisticated account of legitimacy at hand. Here one must agree with Weiler in his diagnosis of lawyers’ use of the concept as a proxy to something else: ‘factors that enhance or detract from the authority or authoritativeness of judicial decisions and of the Court’. I will argue that legitimacy should be taken to mean much more than that.

The paper therefore begins with some reflections on the concept of legitimacy, as it is used in the debates on the EU and its judicial system, particularly the ECJ. In the following section, I will seek to present a framework for studying the ECJ’s legitimacy, which does justice to its dual role: to decide particular cases and at the same time to fulfil much wider functions in the EU political system. The third section then focuses on the perennial problem of judicial legitimacy in the Western legal tradition: how to legitimize creative moments of judicial interpretation of law, which are at the same time unavoidable and deeply problematic for what is sometimes called the liberal doctrine of politics? The fourth section looks in some detail on the recent turn to semantic pragmatism and its relationship to the democratic theory and discusses some of its shortcomings.


Location:
Sala Europa, Villa Schifanoia

Affiliation:
Department of Law
Robert Schuman Centre for Advanced Studies

Type:
Lecture

Organiser:
Prof. Deirdre Curtin (EUI - Law Department)

Discussant:
Marcin Baranski (EUI - Law)

Contact:
Olga Lupu (EUI - Law) - Send a mail

Speaker:
Lecturer in EU Law Jan Komarek (London School of Economics and Political Science)

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