Bibliografía (Revista de revistas) - RabelsZ 4/2011

Última entrega de la Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabel Journal of Comparative and International Private Law (RabelsZ): vol. 75 (2011), núm. 4:

-Richard Buxbaum, Ferenc Mádl (1931-2011), pp. 697-699 (3)

Schwerpunkte:

-Holger Fleischer, European Legal Methodology - Current Position and Future Perspectives - Europäische Methodenlehre: Stand und Perspektiven, pp. 700-729 (30)

Abstract: This article begins with an examination of three common misconceptions voiced against judicial interpretation, emphasising in the process that research into legal methods in Europe is not solely the responsibility of legal theorists but is rather a common task shared by all those active in the legal field. Those looking to advance towards a true European legal methodology must first shed their national feathers. This does not mean underplaying the tremendous intellectual contributions made by German legal methodology; however, one cannot anticipate that all its finely-chiselled concepts and categories will fit into the architecture of the European legal methodology currently under construction. Conceptually, it makes sense to use the dual theoretical systems of EU private law and European ius commune employed with such success in substantive law to equally benefit the development of legal methodology. The article identifies problems specific to methodology in EU private law, including constitutional, systematic, linguistic and gapfilling questions, as well as issues dealing with comparative case law analysis. For the European ius commune, on the other hand, the discussion focuses on the phenomenon of methodological convergence in different jurisdictions by exploring selected issues (significance of legislative history, weighing of interpretation methods, and limitations on judge-made law). Finally, the article raises some broader methodological questions, ranging from specific methods used in certain areas of the law, across the plethora of legal sources and consequentialism, and on to the integration of extra-legal arguments into the legal discourse as well as techniques for legislative drafting.

Aufsätze:

-Christiane Wendehorst, Provisions on Legal Method in Continental Civil Codes - Methodennormen in kontinentaleuropäischen Kodifi kationen, pp. 730-763 (34)

Abstract: More than half of the civil codes currently in force in European countries feature, usually in the introductory chapter, provisions on legal method, i.e. provisions on sources of law, statutory construction, application of rules per analogiam and similar issues. They differ significantly in content and style. Broadly speaking, there are the traditions encountered in the French Code civil, the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB), the Swiss Zivilgesetzbuch (ZGB), the civil codes of Spain and Portugal, and some more recent codifications in Central and Eastern Europe. Despite the prominent position some of the provisions assume in introductory chapters, their practical significance is, in modern times, usually negligible. Even where they are mentioned as justificatory patterns in legal reasoning, this usually occurs in a rather schematic way and does not really have much of an impact. A look back into history reveals that the provisions in question have origins of a mostly political nature, mirroring the power dynamic between the monarch or parliament on the one hand and the judiciary on the other, securing separation of powers or reacting to major historical developments such as the French Revolution. Also, these provisions are intrinsically linked with the emerging idea of private law as state law and with the codification movement taking place in Europe beginning in the late 18th century, underlining the positive nature of the law as well as the integrity of the codification. Originally, they had thus not been designed to provide much practical guidance with statutory construction or similar tasks. The absence of uniform legal methods often comes to be considered as a main obstacle to European legal integration. A restatement of the written and unwritten rules of legal method in Europe might be an interesting academic venture, but the practical impact would probably be very limited. What seems much more promising is to draft provisions on the autonomous methodology of EU law and its interplay with national law. This would not only provide a certain sensitisation of the legal community, but also help preserve the integrity of national codifications. In order to provide practical guidance in everyday legal work, such provisions would, however, have to be very different from the provisions on legal method currently featured in continental civil codes.

-Roderick Munday, Interpretation of Legislation in England: The Expanding Quest for Parliamentary Intention , pp. 764-786 (23)

Abstract: Statutory interpretation is concerned to tease out “the intention of the legislature“ from even the most opaque enactments. English methodology underwent a first sea change in the 1970s, when the courts abandoned traditional, literal methods for a more purposive approach to statutory interpretation, and a second in the early 1990s when, in Pepper v. Hart, the House of Lords overturned English law's obdurate opposition to courts using parliamentary materials when construing statutory provisions. As a consequence of this altered climate, when courts are confronted with ambiguous or unclear wording in legislation, the search for authoritative guidance has led them to explore new sources. In particular, the Explanatory Notes that accompany legislation as it passes through Parliament and departmental Impact Assessments that foreshadow legislation, analysing the potential value of such projects from a policy perspective, have regularly been invoked both in legal argument and in judicial reasoning. Such developments are unwelcome, particularly from a constitutional perspective. Currently, English constitutional arrangements are in a highly unsettled state. It is widely known, for example, that reform of Parliament's Upper Chamber has been a thorn in every government's side since 1997, when New Labour swept to power. Far more ominous, however, is the fact that for some time the executive arm of government has been in the plain ascendant, with the elected Parliament's role increasingly reduced. Against such a backdrop, it brings little comfort to see English judges, when interpreting legislation, turning to sources close to the executive. One is tempted to wonder whether the well-intentioned switch to a purposive methodology has been wholly beneficial.

-Wulf-Henning Roth, Europäische Verfassung und europäische Methodenlehre, pp. 787-844 (58)

Abstract: Ever since the publication of Haltje Rasmussen's critical study of the adjudication of the European Court of Justice, the search for a European methodology (Methodenlehre) that should guide the jurisprudence of the Court relating to the interpretation of primary Union law has been broadly discussed in the academic sphere. Whereas interpretative methods which are common in public international law have been applied in the intergovernmental sphere of the Union Treaties, the Court has used a mixed methodology for the supranational sphere: Traditional methodology familiar to some of the legal systems of the Member States goes hand-in-hand with topoi, which guide the interpretative process and which may be circumscribed as »Union-specific« (the Union as a »community of law« - Rechtsgemeinschaft; dynamic interpretation; effet utile; uniform application of Union law in the Member States; principle of legal protection). Moreover, it may be observed that the European Court of Justice stands in a dialogue with other Union organs, as well as with the courts of the Member States, as far as the interpretation of Union law is concerned. It is generally accepted that the Court has a mandate not only for the interpretation of Union law, but also for its further development (Rechtsfortbildung). The criticism levelled against the Court claims that the Court, at least sometimes, either oversteps the limits of its competence or that the arguments put forward in the judgments often do not bring out the relevant considerations. The paper deals with a number of issues concerning the process of law-Afinding in the realm of primary Union law, setting out some intrinsic limitations and arguing that Rechtsfortbildung by the Court requires a specific presentation of arguments derived from the Treaties as well as their values and underlying principles which legitimise the role that the Court has assumed.

-Axel Metzger, General Principles of Law in Europe - An Inquiry in Light of the Principle of Non-discrimination - Allgemeine Rechtsgrundsätze in Europa -dargestellt am Beispiel des Gleichbehandlungsgrundsatzes-, pp. 845-881 (37)

Abstract: This article addresses the application of the principles of equality and non-discrimination in European private law with a special emphasis on the recent ECJ cases of Mangold and Audiolux. The two cases are of particular interest because of their divergent results. In Mangold the ECJ inferred an unwritten principle of non-discrimination in employment relationships in respect of age from international treaties and the constitutional tradition common to the Member States. The decision has been thoroughly criticised for the Court's construction of cited sources. By contrast, in Audiolux the Court resisted recognising a principle of equality of shareholders although various European directives and recommendations mention such a principle. The two decisions illustrate the methodology of the ECJ regarding general principles of law. The article provides a critical analysis of this methodology. What sources may be used to derive general principles of European private law? How are general principles used in the legal reasoning of the ECJ? What is the position of general principles in the hierarchy of European legal sources? The article also addresses the specific role of the principle of equality in European contract law. For contract lawyers, the basic principle is freedom of contract whereas non-discrimination is an exception that has to be justified. The article supports this precedence of the principle of freedom of contract and specifies the circumstances under which a party to a contract should have the right to ask for equal treatment. Non-discrimination in contract law should be restricted to cases of market failure (e.g. in employment contracts or on the housing market), to cases where discrimination is based on prejudice (especially in the case of racial discrimination), and to cases where compelling policy arguments proscribe any discrimination (e.g. in the case of pregnant women on the labour market).

-Stefan Grundmann, "Inter-Instrumental-Interpretation", System Building through the Interpretation of European Union Law - »Inter-Instrumental-Interpretation« Systembildung durch Auslegung im Europäischen Unionsrecht, pp. 882-932 (51)

Abstract: In this contribution it is argued that it is just as much the task and within the competence of the judiciary to build a coherent system and set of value judgments in European private law as it is the task and within the competence of the legislature. That is to say, it is a task belonging just as much to the courts, namely the European Court of Justice (EJC) (as well as legal scholarship aiming at the construction and interpretation of existing law) as to the legislative organs of the Union (or legal scholarship aiming at the preparation of legislative acts). Broad discretion has to be acknowledged in favour of the judiciary, and one should not assume that there are narrow “constitutional“ limits hindering such an active role of the judiciary. The contribution argues that such an approach not only mirrors what is in any event the dominant trend in the current case law of the ECJ, but that it is also more in line with the institutional arrangement of the Union, namely with what is called the institutional equilibrium. Thus, courts are invited to build systems actively. Moreover, they should make this role even more explicit and indeed stress more openly the core underlying rationale as opposed to hiding it behind “well-accepted“ narrow “canons of construction“ and pretending that the results flow almost “automatically“ from the application of such canons. The topic is treated by first showing the various dimensions which can be seen as examples of “systematic interpretation“ or “construction“, using in the process leading cases decided by the ECJ (see above sections I. and II.). In these sections, the variety of possible dimensions is then also narrowed down to such cases of systematic interpretation which have to do with multiple legal instruments, not only systematic interpretation within one such instrument. These cases of inter-instrumental interpretation seem to not only be more interesting from a theoretical perspective, but also of higher practical importance today. It is in the area of inter-instrumental interpretation as well that the “hard cases“ mostly occur. These cases are treated in more detail in a last section (see above section IV.) after having first clarified in a third section the foundations of a systematic interpretation of (private) law in the European Union, namely the institutional arrangement of the Union which influences the particular role and shape of such systematic interpretation precisely in the Union (see above section III.).

Literatur:

-Patrick Kinsch, Chantal Mak: Fundamental Rights in European Contract Law, pp. 933-936 (4)
-Jan Peter Schmidt, Pinheiro, Luís de Lima: Direito internacional privado. Vol. 1, Pinheiro, Luís de Lima: Direito internacional privado. Vol. 2, pp. 936-940 (5)
-Marcus Schladebach, Internationales Wirtschaftsrecht. Herausgegeben von Christian Tietje. Bearbeitet von Horst-Peter Götting u. a. pp. 941-945 (5)
-Manuel Nodoushani, Weller, Marc-Philippe: Die Vertragstreue. Vertragsbindung, pp. 945-950 (6)

Eingegangene Bücher
Mitarbeiter dieses Heftes
Sachverzeichnis zum 75. Jahrgang (2011)

Últimos números: 4/2010, 1/2011, 2/2011, 3/2011