Online research in philosophy

This Handbook deals with the right to life, as guaranteed by Article 2 of the European Convention on Human Rights, and with the case-law of the European Court of Human Rights ("the Court") under that article. In summarising the case-law of the European Court of Human Rights (and where relevant, of the European Commission on Human Rights, abolished by Protocol No. 11 to the Convention) on Article 2, reference is however often also made to more general issues, to other rights in the Convention, and to issues outside the Convention (such as other European or United Nations standards), as reflected in that case-law. This handbook is aimed, in particular, at judges and other legal professionals such as prosecutors and practising lawyers. These need to understand the Convention and the case-law of the Court, in particular when the Convention is formally part of their domestic legal systems - as is the case in most of the member States of the Council of Europe. Indeed, in law, the Convention in many European countries overrides ordinary domestic law. It is therefore crucial for these legal practitioners to be aware of the detailed requirements of the Convention. More specifically, it follows from the supremacy of the Convention that the interpretation of the Convention by the European Court of Human Rights should also be followed by the national courts in these countries. The Court's judgments are not merely advisory or relevant to the respondent State in a given case only. Rather, in Council of Europe member States in which domestic law or jurisprudence proclaims the supremacy of international law in general, and/or of international human rights law or the Convention in particular, the domestic courts must follow the European Court of Human Rights' interpretations of the Convention in their own jurisprudence. It is hoped that this handbook, together with the other handbooks already issued, will help them do so.

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.

This article uses Hans Kelsen's theory of a legal system to take a fresh look at European Community law, and the relationship between the European Community, its Member States, and international law. It argues that the basis of the Community's legal legitimacy is indeterminate, and offers a model to accommodate that indeterminacy. This model is founded on a constructivist approach suggested to be particularly useful in the EC context. Using this approach, it is argued that the concepts of system, autonomy and sovereignty in the Community can only be understood through the recognition of a plurality of viewpoints, and that it is crucial, in describing the Community, to distinguish between a concept per se and the choice to adopt that concept.

An important strand of scholarship claims that creating a new European private law (such as the drafting of a Common Frame of Reference for European Private Law) should not primarily be the work of legal scholars, but of politicians and parliaments. Another view would purportedly lead to a lack of democratic legitimacy. This raises the more general question what should be the exact relationship between private law and (national) democracy. This contribution - written in the Festschrift for Anthony Ogus - argues that the relationship between European private law and democracy is often misunderstood. Legitimacy of private law cannot only be established through the national democratic institutions, but also in other ways. The Common Frame of Reference for European Private Law is an important example of this: as a non-binding instrument, it need not fulfill the same requirements as binding law. But also private law in the more traditional sense does not always have to be legitimised at the state level: the democratic functions of law can sometimes be provided by others than the State. The exact conditions under which this is the case still need to be explored.

The aim of this paper is to develop an analytical framework for legal integration (integration through law / integration of law) in the European Union from the perspective of legal culture. We advance a relational conception of legal culture that builds on the tension between, and the reciprocal adaptation of, legal rules and social norms (process) in a given institutional order (unit). Drawing on Paul Bohannan's notion of double institutionalisation of law, we first analyse the relationship between legal rules and social norms in the state legal order. Secondly, we submit that due to the enhanced level of integration of the European polity as compared to traditional international law-type entities it is possible to cognise a European Union legal culture which is simultaneously distinct from and mutually constitutive of the legal cultures of its Member States. We conclude that from the perspective of legal culture, the challenges of European integration are not adequately described either in terms of a 'conflict of laws' or in terms of a 'clash of cultures'. Rather, legal integration in the European Union should be understood as building on parallel but interlocking processes of double institutionalisation of law at the European and the national levels.

In the classical narratives of the story called European integration, national judges are said to have a 'mandate' under European law: they are 'empowered' by EC law or, in the less thrilling versions of the story, they simply become 'Community judges'. Not only are national judges obliged to apply substantive EC law, they are also requested to apply it in the way required by the Court of Justice. How, precisely, national judges are asked to apply EC law in domestic courts has traditionally been portrayed through the case law of the Court of Justice; not much attention has been paid to the reality in national courts. Over the years, the case law of the Court of Justice has created an image of a veritable European judicial Hercules: a judge who reads in many of the official languages of the European Union; who knows not only all the relevant national and European law, which he applies ex officio, but also engages in comparative interpretation of the law; who identifies himself with the European telos which he is applying on the national level; and so on. The structure of this contribution is dialectic. First, it summarises some of the requirements the case law of the Court of Justice imposes upon national judges when applying EC law. Second, a realistic assessment of the judicial capacity in these areas is provided, with (where possible) some examples from the case law of the new Member States. Finally, broader conclusions are drawn concerning the capacities and strategies of national courts in the domestic application of EC law, including some of the inspirations which the European legal order may draw from game theory.

The creation of a European law of civil procedure is a continuous and dynamic process that, in its present form has really only just started. In this contribution three issues involved in the creation of a European law of civil procedurewill be discussed. These issues are (1) the meaning of Article 65 of the EC Treaty for legislation in the field of law of civil procedure; (2) the choice between a separate European regime or a harmonization of national provisions in specific files; and (3) the emergence of sectoral European law of civil procedure in internal market dossiers, such as procurement law, intellectual property law and competition law and very recently, consumer law. In providing an outline of these issues, the author demonstrates some of the difficulties met in the creation of European civil procedural law. Moreover, the article intends to set the debate on the subject in motion and to contribute to finding answers to the issues discussed in it.

Making a first sketch of philosophical issues arising fromEuropean Community law I want to present a series ofmore or less obvious, and more or less interrelated dilemmas,or even double binds.(i) Deepening the community becomes incompatible withwidening membership. (ii) National states seem bothnecessary for and obstructive in articulating transnationalproblems. (iii) The more democracy is needed as a warrantfor the public exercise of political power in Europe, themore the very concept of democracy on a European scaleevades understanding. (iv) European unity presupposes aunifying rule of law, while member states have radicallydifferent conceptions of this principle. (v) Even the verycore of European integration, the common market, is subjectto two conflicting and, indeed, incompatible doctrines ofcompetition. In explaining the nature of each dilemma I willtry to take my cue from the Maastricht Treaty wherever thisseems suitable. Then I will elaborate on the jurisprudentialproblems involved in it. Finally, each section will be closedby an attempt to state the nature of these problems inphilosophical terms.