Tag Archives: Harris Legal Philosophies


by ,
    • Basically, where MS has breached Union law. Proceedings can be brought by Comm or other MS, but NOT individual – indiv claim limited to state liability. Aim is to obtain declaration by ECJ that MS failed to fulfil Treaty obligations (declaratory judgment!)
    • Elements:
      1. MS in breach of EU law
      2. Decide if it’s Comm v MS or MS v MS
      3. If it’s Comm v MS: i) procedure administrative phase, judicial phase, ii) declaratory judgment, iii) penalties under art 260 TFEU.
      4. NB: MSs usually reluctant to bring case themselves – try to get Comm to take on issue instead, to avoid political ramifications.


  • Key provisions:


      • Art 17(1) TEU: gives Comm task of ensuring and overseeing application of EU law – monitor MS compliance.
      • Art 258 TFEU: general enforcement procedure
        • Elite diplomatic channel for amicable dispute resolution
        • Allow indivs to complaint to Comm about breaches of EU law
        • ‘objective’ law enforcement tool for Comm – Dentist Airdrie


  • Art 260 TFEU: Comm can request penalty payment if MS fails to comply with previous judgment under art 258 (increasingly used!)
  • 4 stages to the infringement procedure (administrative, then judicial):


      1. Pre-contentious stage: MS has chance to explain position, and reach agreement with Comm. Comm will start off negotiations with the MS’ Permanent Representative
      2. Formal notification: MS gets letter of formal notice from Comm, detailing specific infringement. Allows MS reasonable period to reply/submit observations.
      • ➔ possible further round of discussions
        1. Reasoned opinion: issued by Comm, to which MS must comply within reasonable time.


  • Referral: Comm refers matter to ECJ (has discretion whether to do so – no automatic transfer of jurisdiction to ECJ)
  • ➔ ECJ will give a declaratory judgment (whether MS breached law) – might prescribe interim relief under art 279.


    • NB: under art 259: MSs can initiate action against another – has to bring matter before Comm first (but doesn’t have to contact the other MS), and Comm will deliver reasoned opinion after both MSs have chance to make oral and written submission. Dentist Airdrie
    • ➔ but seems like complainant MS can bring case to ECJ even where Comm thinks there has not been a breach of EU law!
    • ➔ rarely used – political reasons. MSs can also intervene in cases brought by Comm.
      • In Spain v UK, 2000: Spain brought action against UK on UK’s extension of voting rights in EP elections to Gibraltar residents.
      • Hungary v Slovak Republic, 2012: Hungary’s president wanted to travel to village in Slovak, where statue of founding saint of Catholic Church of Hungary was to be unveiled. But visit planned to be on anniversary of Hungary taking over Czech Republic in 1968. Hence Slovak refused permission to enter. Hungary complained to Comm – Comm issued letter of formal notice to Slovak, but Comm didn’t really want to get involved in political issue.
        • Comm in reasoned opinion said it didn’t perceive potential violation of EU law. In any case, said it was justified.
        • Hungary brought case to ECJ. Slovak argued it was matter for public international law, cos talking about foreign head of state wanting to gain access for official reasons as head of state.
        • ECJ rejected this: scope of EU law is for EU to decide! Hungary does not have to pass any further admissibility hurdles. But eventually held Heads of States have to request official permission under public international law – host MS has to be aware and give consent cos of all the immunities etc.

Harris Legal Philosophies, Ch.14:

by ,
  • Judges often take into account what the law ought to be in assessing whether X is a correct interpretation e.g. “if that interpretation is correct then Y must be true which would be unfair/illogical etc”.
  • Dworkin says law isn’t something we give information about: it is something we argue about: Discovery of law requires “constructive interpretation” i.e. the discovery of law involves finding the morally truest statements about the rights of citizens which will fit the legal materials. This is his “rights thesis”. NB if true then we cannot complain about result based reasoning or the ensuing legal uncertainty.
  • Dworkin says principles are legal and bind judges- see week 1 reading. This attacks the idea of law as a system of rules only. Principles are different from rules since rules are either “all or nothing” (2 conflicting rules cannot both exist) whereas principles “have a dimension of weight”.
  • Hart’s postscript argues that principles can enter law but only when validated by a superior rule e.g. the rule of recognition. He also refutes that principles and rules differ in logical type: he says the difference is one of degree: rules simply have more conclusive force but, like principles, can be overridden.
  • Dworkin denied the positive solution to where law runs out or “hard cases” (that judges have a strong discretion to make law) and instead says that judges have no discretion: they are bound by principles.
  • The correct constructive interpretation will depend on which has the closes fit with the data available and has political merit. Therefore law is interpreted in a moral way.
  • How is state coercion to be justified? Three possible answers: Conventionalism (see week 1 reading); Legal pragmatism; or “law as integrity” (Dworkin’s answer).
    • Conventionalism is bad as there often are no clear social conventions guiding the application of law and when this is the case conventionalism provides no justification for depriving people of their liberty, property etc. For Dworkin, positivism = conventionalism.
    • Legal Pragmatism says that there are no just grounds for state force. Since law = justified coercion, there is no law, but merely a fiction that certain provisions create legal consequences on pragmatic grounds. In so doing, the political pragmatist favours whatever political goals he considers best. Dworkin rejects this- judges and lawyers are not simply making up rules.
    • Law as integrity says that coercion is justified where the community exhibits the virtue of integrity i.e. so long as the community has a well thought out system of values it has integrity. Dworkin says this explains why past political decisions (taking effect in statute or precedent) still bind. This explains legal controversy: disputes are not merely about the applicable social conventions, but what would show the community’s treatment of its subjects in the best light i.e. law = the best politics that fits the legal materials.
  • Dworkin says the best politics (and that which therefore is used by the courts etc) is that of “fraternity” i.e. shared responsibility for actions, concern for all equally etc. This standard of integrity turns community force into law. Thus there is a fundamental right to be given equal concern in the construction of law, which means giving everyone basic rights.
  • Dworkin says that either positivists do believe in interpretation but in a value free way (conventionalism, which he claims is false) OR deny the need for an interpretative attitude because they say we know what law is by looking at the way ordinary people use the word “law”. If it’s the second, lawyers who have a dispute about the law are really arguing purely about linguistic usage, which would be absurd. Harris says the semantic sting argument is bizarre: none of the positivists claim law is only used in one sense. How positivists like Hart would apply the law is by seeing whether it fits their model e.g. complies with RoR etc, NOT whether a rule can be defined as a law in accordance with ordinary use of language.
  • Hart rejected Dworkin’s starting point (that law is primarily coercion- only Kelsen said this).
  • Harris asks: If a legal system can only exists once it passes a threshold of morality or “integrity”, how many legal systems in the world really are there? Dworkin doesn’t say.
  • Interpretation and Adjudication: Remember that Dworkin says the correct interpretation of the law is the one with the greatest political merit which also fits. The “political merit” is the substantive part and can be broken down into “justice”, “fairness” and “procedural due process”. Justice = right and goal of equal concern and respect for each citizen that the ideal legislator should possess. Procedural Due Process = moral requirement to abide by previously announced legislative choices i.e. don’t upset expected outcomes (what about overruling precedents? Also the “fit” requirement deals with this part- this shows the “substantive”-“formal/fit” distinction to be false since both parts are substantive. Thus, on procedural due process, the best fit IS necessarily the most substantively good). “Fairness” = what popular opinion demands.
  • Principles are propositions that describe rights, whereas policies are propositions that describe goals. Rights are principles, not policies, since it does not describe a political goal as policies do; rather it is an assumed backdrop. For example, a right has a “threshold weight” against a collective goal (Why couldn’t these just be competing policies?). Dworkin says the law’s job is to adjudicate between the rights of the parties before him, leaving collective goals/consequences i.e. policies, to the legislature. Supported by Lord Scarman in McLoughlin v O’Brian. Though in this case Lord ED denied this saying that judges have always taken policy factors into consideration when making the law.
  • Dworkin says that it is better that judicial innovation should be regarded as principle not policy because (1) it means he is deciding between the parties who has the better right, whereas judicial legislation based on policy would be a de facto retrospective piece of legislation, which is unfair for lack of possibility of compliance; and (2) if merely deciding principle it does not matter that judges may not have as good resources as parliament to assess the total impact of their judicial legislation. NB these do not show that judges DO operate by looking at principle rather than policy, as Dworkin contends, but merely that they ought to. Harris says the first (and main) argument is bad as the determination of who wins in a set of circumstances where the law runs out still has a retrospective effect, since the losing party could not have complied with the rules as they had not yet come into existence i.e. it is still unfair.