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The Enforcement of EU Law and ValuesEnsuring Member States' Compliance$
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András Jakab and Dimitry Kochenov

Print publication date: 2017

Print ISBN-13: 9780198746560

Published to Oxford Scholarship Online: April 2017

DOI: 10.1093/acprof:oso/9780198746560.001.0001

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On the Legal Enforcement of Values. The Importance of the Institutional Context

On the Legal Enforcement of Values. The Importance of the Institutional Context

Chapter:
(p.28) 2 On the Legal Enforcement of Values. The Importance of the Institutional Context
Source:
The Enforcement of EU Law and Values
Author(s):

Giulio Itzcovich

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198746560.003.0003

This chapter argues that any sensible answer to the question of the role of explicit moral reasoning in adjudication must take into account a broad set of institutional facts. Whether the court aiming to ‘enforce values’ is the ECJ or whether it is a domestic constitutional court is an important distinction for many reasons, and this chapter attempts to explore these reasons and argue for their relevance. It first maintains that the current debate on the role of moral reasoning in adjudication is related to a set of institutional processes. The chapter then distinguishes two positions in the debate on the role of moral reasoning in adjudication: ‘normative legal positivism’ and ‘neoconstitutionalism’. Finally, this chapter clarifies some methodological and substantive consequences which can be drawn from the nexus that binds together the choice of interpretive method with the greater or lesser trust we have in the interpreter.

Keywords:   moral reasoning in adjudication, institutional processes, normative legal positivism, neoconstitutionalism, interpretive method, moral reasoning

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