engleski

Between a formalist and a realist jurisprudence in the EU

EU legal culture operates under a perplexing formalist façade. Being deeply influenced by positivist tradition in Europe, it requires all judicial developments of EU law to be traced back to the legal grounds within the Treaties and its text. In turn, to respond to textual indeterminacies, the EU method relies heavily on teleological interpretation of the law, reminiscent of a Dworkinian ideal of community values capable of resolving all legal problems the system encounters in a principled manner. This paper in contrast argues that, beneath the surface, CJEU jurisprudence conforms to the assumptions posed by the theory of legal realism, both in terms of its judicial lawmaking and policymaking. The inherent indeterminacy of EU law combined with far- reaching effects of CJEU’s jurisprudence prove the merits of the realist critique of adjudication, which has in the EU context been significantly and unduly overlooked.

Legal Formalism, Legal Realism, Court of Justice, Adjudication, EU law, Jurisprudence

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