Positivist and non-positivist theoretical accounts of the concept or practice of law have debated the role played by values as (possible) features of legal ordering or (possible) conditions of legality. These debates concern whether law is properly understood as a descriptively accessible social fact, or is linked to a discursively accessible realm of 'abstract' normativity. Such debates arguably fail to fully account for the sense in which values operate within the legal order of the European Union, an order which is based upon the realisation of a complex objective, that of European integration. This legal order illustrates that, providing the moral concerns associated with 'rule of law' legal orders are maintained, additional values relating to the achievement of a co-operative political, social or economic enterprise can operate as fundamental or higher legal standards. Union institutional practices, notably those of the Court of Justice, support a widening of the role of values within the theory and practice of law. A comparative method of inquiry, acknowledging diverse theoretical insights regarding law, combined with analysis of case judgments of the Court of Justice provides argumentative and evidential support for this proposition. The Treaty objectives direct the practices of Union and domestic courts (when seized with issues of Union law) in their legality review, 'rights-affirming' and interpretive functions within an institutional account of law and legal practice. The Court's practices highlight institutionally viable expressions of politically sensitive (to Member States) Union values. At the same time these practices illustrate the potential for specific objectives, including those associated with public international Treaties, to form a basic function or value of legal ordering. This proposition is compatible with received theoretical analyses of law while affirming their qualified development.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:553152 |
| Date | January 2011 |
| Creators | Moorhead, Timothy |
| Publisher | University of Reading |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
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