Structural Values in Judicial Reasoning

• Department of Law

PhD thesis defence by Jaka Kukavica

This thesis studies consensus analysis as an argumentative practice. That is, the thesis studies how highest courts in divided-power systems give meaning to legal norms of the higher-level legal order through determining whether a consensus exists on the issue amongst legal orders of the constituent units of that polity, that is the states. Consensus as an argumentative practice is used by different courts, ranging from constitutional to international courts and treaty bodies.

This thesis takes stock of the different structural contexts in which these courts operate and explores if courts employ consensus analysis in a way which fits the structure of the divided power system in which the courts operate. It conducts this inquiry in two parts. In Part I, it constructs the theoretical and analytical framework, as well as provides a justification for its normative outlook that an argumentative practice should fit its broader structural context. It does so based on coherentist and structuralist theories of justification in law, leaning most heavily on the conception of integrity and fit in legal adjudication as explicated by Dworkin.

Building on these theoretical starting points, the thesis constructs the analytical model that consists of two Weberian polar ideal types of consensus analysis based on the conception of structure that is implicit in different types of consensus analysis. In Part II, the thesis uses these two ideal types of consensus as analytical yardsticks to critically evaluate the case law of three courts that lie on a spectrum from a constitutionalist court to an internationalist court. It studies the national consensus doctrine of the Supreme Court of the United States, the constitutional traditions common to the Member States used by the Court of Justice of the European Union, and the European consensus doctrine of the European Court of Human Rights.