Conflicts of Rights in the European Union: A Theory of Supranational Adjudication
Aida Torres Pérez
Abstract
This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, state courts are asked to follow the standard of protection defined by the European Court of Justice (ECJ). The ECJ's claim to normative authority needs to be justified. This book advocates a theory of supranational judicial authority grounded in the ideal of dialogue. At the outset, it is argued that traditional approaches to constitutional conflicts based upon supremacy should be overcome. A plurali ... More
This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, state courts are asked to follow the standard of protection defined by the European Court of Justice (ECJ). The ECJ's claim to normative authority needs to be justified. This book advocates a theory of supranational judicial authority grounded in the ideal of dialogue. At the outset, it is argued that traditional approaches to constitutional conflicts based upon supremacy should be overcome. A pluralist framework for structuring the interaction between legal systems in the EU not only offers a better account of reality, but it should be welcomed normatively as well. In this context, the ideal of dialogue will contribute to a better understanding and theorizing of the interaction between national and supranational courts interpreting fundamental rights. Despite multiple and varied references to dialogue in the literature, mostly from a descriptive standpoint, there has been no thorough and rigorous account establishing its legitimating potential regarding ECJ adjudication of fundamental rights norms. This book offers a theoretical account of how the legitimacy of ECJ's authority in adjudicating fundamental rights might be grounded in the ideal of dialogue. The arguments underpinning the legitimating potential of dialogue and the prerequisites for judicial dialogue are explored. Thereafter, the implications of dialogue for the mode of judicial reasoning in interpreting fundamental rights are analyzed. Such a theory of supranational judicial authority would serve as a normative model to assess the activity of the ECJ and to improve current institutional practices.
Keywords:
conflict of rights,
adjudication,
judicial authority,
dialogue,
legitimacy,
constitutional pluralism,
interpretation
Bibliographic Information
| Print publication date: 2009 |
Print ISBN-13: 9780199568710 |
| Published to Oxford Scholarship Online: September 2009 |
DOI:10.1093/acprof:oso/9780199568710.001.0001 |
