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The Common European Constitutional Culture

Its Sources, Limits and Identity

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Edited By Roman Hauser, Marek Zirk-Sadowski and Bartosz Wojciechowski

The authors focus on the interrelations between the sense of individual identity and the sense of national identity. Their aim is to find a common European legal culture. The processes of Europeanization have been proceeding on the legal level, wherein the CJEU took a prominent role, and on the level of intergovernmental decision-making. In the aftermath, the EU may be comprehended in terms of the rights-based union and problem-solving entity although the emergence of the values-based community has been stymied and the transnational public spheres are rather thin. This caused a democratic deficit and provoked debates about the EU as a post-democratic polity. There are disputes whether this oddity of the EU indicates its nobility or perversion. But the fact remains that the Eurocitizens in their post-sovereign states became lost in the Hegelian extreme terms of the universal-formal rights. Their individual interests made them especially exposed to the shocks of the economic crisis. This makes it necessary to address the issue of the common European constitutional culture.
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How Moral Judgment Competence Fosters Discretionary Powers: A Dilemmatic Approach

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Abstract: When applying law, and seeking for a just sentence, judges reason, judge and make decisions in an institutionally determined and limited discourse space. However, their personal moral judgment competences are strongly challenged in these proceedings. Each new case demands fresh non-routine situation- and context-related decisions, judgments, and sentences. In particular, establishing a just sentence in the face of complex issues such as dilemmatic situations, – so called “hard cases”, or countertypes – can be specifically demanding for judges. Our chapter examines the condition of moral judgment competence in such challenging contexts, whilst referring to both the limits and the potential of discretionary power.

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