Political Identity and Fundamental Rights Protection in the European Union
Edited By Gabriele de Angelis and Paulo Barcelos
Section III: Consequences of Constitutionalisation: Legal Dilemmas, Legal Conflicts
155 Section III Consequences of Constitutionalisation: Legal Dilemmas, Legal Conflicts Legal Certainty in Europe. Legal Pluralism and Argumentative Practices of the European Court of Justice GIOVANNI DAMELE1 Dialogue between Courts in Europe and comparative atmosphere The subject of this article, the relationship between the national courts and the European Court of Justice (ECJ), is in itself neither new nor original. However, this well-known and deeply-analysed issue is here considered from the point of view of legal argumen- tation and interpretation.2 Under these terms, the main question is to see how the plurality of levels of legal protection from the national courts up to the ECJ influences, if it does indeed influence, the practises of legal argumentation. Thus, the main question is the (possible) comparative nature of legal argumentation in this context. The multilevel protection has led to rulings inspired by a comparison between the legal traditions of different countries and different sources of fundamental rights. Some authors have meta- phorically described this state of affairs as “comparative atmos- phere” characterised to a certain degree by “consonance” or “poly- phony”. This conception of multilevel legal protection presupposes 1 The author is researcher at the Institue of Philosophy of Language, Faculty of Social Sciences and Humanities, Universidade Nova, Lisbon. His research is made possible by a scholarship of the Fundação para a Ciência e a Tecnologia. 2 Here I am using the locutions “argumentation” and “interpretation” in a more or less equivalent sense, since every interpretation “in mente interpretis [in...
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