COMPARATIVE LEGAL REASONING AND EUROPEAN LAW

Transcription

1 COMPARATIVE LEGAL REASONING AND EUROPEAN LAW

2 Law and Philosophy Library VOLUME 50 Managing Editors FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHAEL D. BAYLESt, CONRAD D. JOHNSONt, ALANMABE Editorial Advisory Board AULIS AARNIO, Research Institute for Social Sciences, University of Tampere, Finland ZENON BANKOWSKY, Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh PAOLO COMANDUCCI, University of Genua, Italy ERNESTO GARZ6N VALDES, Institutfiir Politikwissenschaft, Johannes Gutenberg Universitiit Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK, European Parliament, Brussels, Belgium WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University CARL WELLMAN, Department of Philosophy, Washington University The titles published in this series are listed at the end of this volume.

3 COMPARATIVE LEGAL REASONING AND EUROPEAN LAW by MARKKU KIlKERI University of Turku, Finland SPRINGER -SCIENCE+BUSINESS MEDIA, B. V.

4 A c.i.p. Catalogue record for this book is available from the Library of Congress. ISBN ISBN (ebook) DOI / Transferred to Digital Print 2001 Printed on acid-free paper AII Rights Reserved 2001 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in 2001 No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner.

5 TABLE OF CONTENTS Acknowledgements xi CHAPTER 1: INTRODUCTION 1. GENERAL REMARKS 1 2.COMPARATIVE LAW IN THE CONTEXT OF EUROPEAN LAW 5 3.THERELEVANCEOFTHESTUDY 7 CHAPTER 2: SOME HISTORICAL AND THEORETICAL OBSERVATIONS 1.PRELIMINARY REMARKS: THE RHETORICAL NATURE OF THE COMPARATIVE LEGAL ARGUMENT SOME HISTORY Early comparisons Modem comparative law Conclusions TO THE IDEA OF COMPARATIVE LEGAL REASONING Introduction Traditional approach Comparative law argument and comparative legal culture Comparative law as comparative legal reasoning Conclusions: the basic structure of practical comparative legal reasoning GENERAL CONCLUSIONS 52 CHAPTER 3: COMPARATIVE LAW IN EUROPEAN LEGAL ADJUDICATION 1. INTRODUCTION Preliminary remarks Some "legal" bases for the use of comparative law in adjudicative reasoning Some observations concerning the material of the study The use of comparative law in some national legal orders General remarks Comparative reasoning in relation to international legal obligations 69 European law and national legal orders 69 Other types of international obligations Some examples Some general remarks on internal comparison, mixed courts, and private international law comparison COMPARATIVE LAW IN THE EUROPEAN LEVEL CASE LAW 2.1. European Community law General remarks On interpretation in Community law

6 vi T ABLE OF CONTENTS 2.l.3. The legal basis for the use of comparative law l.4. General remarks on the use of comparative law in the European Community legal order l.5. Some general remarks on comparative influences in Community law l.6. Comparative reasoning in the realm of international law in the European Court of Justice l. 7. The use of state legal systems in the absence of international obligations l.8. Conclusions 147 On the basis ofthe case law 147 On the basis of the interviews The European System of Human Rights l. General remarks Some examples of comparative reasoning 154 Trial within a reasonable time or release pending trial 154 Corporal punishment in private schools 154 Non-enforcement of access and custody rights 155 Non-recognition of paternity 156 Transsexuality 158 Pre-trial detention Comparative reasoning related to Article 10(1 and 2) (''freedom of expression" and "necessity in a democratic society") in of the European System of Human Rights 160 (Cases Handyside, Engel, X v Germany, Arrowsmith, Glimmerveen, Liberal Party, Barthold, Glasenapp, Markt Intern, Groppera, Autronic,Miiller, Caste Is v. Spain, Observer, Colman, Chorherr, Informationsverein Lentia, Casado Coca, Jersild, Oberschlick) Conclusions on the European System of Human rights 184 On the basis of the case law 184 On the basis of the interviews Some general conclusions l. General remarks Some analysis "HARD CASES" AND THE COMPARATIVE LIMITS OF EUROPEAN LAW l. Introduction Value based comparative reasoning 195

7 TABLE OF CONTENTS Vll 3.2.l. Hard case I (The Otto Preminger Institute in the European system of human rights) 195 General remarks 195 Context of justification 195 Justification 198 Some further analysis 199 "Morality" and procedural polycentrism Hard case II (Bachmann in the European Court of Justice) 204 Introduction 204 Context of justification 204 Justification 205 Some analysis 206 Conclusions Traditional comparative reasoning Hard case III (Hoechst in the European Court of Justice) 208 General remarks 208 Context of justification 209 The inquiry into the Member States' systems 211 The inquiry into the European System of Human rights 215 Conclusions 217 Justification 218 Some analysis: a principle of individual protection vs. protection of business premises? Hard case IV (Albany in the European Court of Justice) 222 General remarks 222 The facts of the case 223 The context of justification (the Advocate General's opinion) 224 The Court's reasoning 227 Some other studies 230 Some conclusions 234 Collective agreements and competition law; basic rights, market rights, and the hierarchy of these rights based on the idea of functional interpretation 236 General conclusions Functional comparative reasoning: Hard case V (Kalanke in the European Court of Justice) l. General remarks Comparative law as acceptable and non-acceptable legal source "Substantive equality" 245

8 viii TABLE OF CONTENTS Some analysis Comparative generalities, the paradox, and the use of third law Substantive equality as a cultural argument, the limits oflaw, and functional law A systematic interpretation? Epilogue 1: Structural inequality Epilogue II: a vertical comparative analysis Final conclusions Conclusions on the hard cases 265 CHAPTER 4: CONCLUSIONS 1. COMPARATIVE EUROPEAN LAW AND EUROPEAN COMPARATIVE LAW Preliminary remarks The intellectual dimension: forms of interaction of arguments and legal systems General remarks The analytical quality of comparative arguments, the "stages of coherence", and the legal integrity of systems Motives for comparative reasoning in European law General remarks The forms of traditional "self-construction", control of compliance, and integrative interpretation Maintenance of "reasonable autonomy" and the role of comparative considerations in substituting the travaux preparatoires Implementation of changes in a persuasive way; the strength of the normative solution The stability function: the strength ofthe argument, the judicial self-restraint, and the relative dynamics and stability Comparative reasoning directing the future interpretations in national and European legal systems The institutional dimension Institutional reasoning in European law The structure of the European level institutional comparative law Conclusions The function of comparative law in the evolution of European law Problems of evolution? 287

9 TABLE OF CONTENTS ix 2. CONCLUSIONS ON EUROPEAN LAW 2.1. General remarks: toward a "reflexive" theory of European law Is there justification for the (institutional) non-discursive reflexivity? Integrative reflexivity and European comparative rules European comparative dogmatics and vertical comparisons Conclusions 299 EPILOGUE 1. CONTEMPORARY COMPARATIVE LAW WHAT KIND OF INSTITUTIONAL mstification IS COMPARATIVE LEGAL mstification? 307 LITERATURE 317 INTERVIEWS 329 INDEX 331

10 ACKNOWLEDGEMENTS The following argument was first defended as a doctoral dissertation in March 1999 in the Department of Law at the European University Institute Florence. The criticism, the comments and the support received during and after the defence have shaped this text to its contemporary form. The text is considerably shortened, but as well some new chapters have been included. Some work related to the correction of the various fallacies unfortunately embedded in the thesis and to sharpening of the argumentation. I would like to thank the readers of the thesis, Aulis Aarnio, Massimo La Torre, John Bell, Marie-Jeanne Campana, and Gunther Teubner, for their help in this project. Especially the support and the encouragement of Aulis Aarnio and Alexander Peczenik have been essential for this publication. Aulis Aarnio has shown his deep broadmindedness during this process and I hopefully have learned something from it. I also want to thank Susan Lamb again for her short introduction to public secrets of the English language. The comments of the (unfortunately) anonymous Kluwer referee have also been instructive and he (she?) has given me inspiration to review and make additions to the text. Furthermore, many additions are due to the discussions I have had with Kaj-Henrik Impola, Olavi Sulkunen, Jari Hellsten and Heikki Larmola in the Finnish Parliament library during the endless "breaks". Three of us have already defended, so these breaks have not been obstacles for the work but obviously some kind of intellectual "gymnastics" necessary for scientific thought. The Finnish Parliament provided me work place in the researchers' hall and help in research. Especially I want to thank Eila Rantala. The University ofturku provided me valuable experience by having me as a substituting professor of International and European Law in the Faculty of Law during , and various discussions there were very inspiring. I hope I would have the possibility to return some day to this University rich in tradition. I would like to acknowledge the scholarship provided me for the Doctoral research by the Finnish Academy. The Finnish Cultural Foundation (Heikki Haapaniemi fund) gave me financial support for finishing the thesis. However, the work after the defence has been possible only because of the scholarship I received from the Emil Aaltonen Foundation. I sincerely thank all persons involved. My friend Antti Uihteinen has patiently and with high professional skill provided me assistance with all the matters relating to computers, programming. The publishing editor Sabine Wesseldijk and her assistants Anny Burer and Ireke Ravesloot have patiently helped me and directed this publishing process in a friendly ambience.

11 xii Because this has been so long project I want to thank also Ilkka Kangasniemi, Tero Lahdes, Harri Pennanen, Merja Pentikainen, Risto Wallin for the great moments together. My family, including my brother Mika, my parents Paavo and Anna-Liisa, Eeva Gaebel, Jussi and Pirkko Kiikeri, Orvokki Vuori, Jaana, Roosa and Pietu, and UIla Aaltonen supported me in my defence, which I remember with joy. My wife Anu and sons Justus and Walle have, like during this fathers' day, created the good humor, atmosphere and everything else for all this. I find no adequate words to thank you, so I dedicate this book to you. In Rome, Tomba di Nerone, 12th November 2000, Markku Kiikeri

12 "Spoken words are symbols for different states of mind and the written words are symbols for speaking" ARISTOTLE