aw in its best light

  1. Not really necessary to see the law in its best light – judges & theorists shouldn’t look at law through rose tinted spectacles, making it the best it can be – should instead describe it as it is
  • Dworkin: there’s no simple description of law as it is – describing it in that way necessarily involves an interpretative process which requires determining what the best interpretation of officials past actions is   law “as it is” is just a collection of past official decisions (i.e. pre-interpretive data) & collectively they can’t answer a legal question until some order is imposed on them; i.e. through “constructive interpretation”
  1. Emphasises the possibility of revision too much/doesn’t provide coherent theory for “easy cases” (b/c still says interpretative element exists)
  • The theory’s strenght of being able to account for the way law is regularly subjected to change & re-characterisation is also its weakness D argues that, even in situations where there seems to be a recent authoritative legal source directly on point, there’s still a need for interpretation since a skilled advocate could argue, whilst looking at past legal decisions, that appellate court’s decision was mistaken or too broad.
  • Emphasises the possibility of revision too much & the likelihood of settlement too little.It celebrates the notion of great individual judge rethinking whole area of law, thereby deflecting attention from important areas of consensus & shared understandings. The whole picture may actually be too grandiose to cope w/day to day choices which real judges have to make.
  1. Defeats the purpose of having legal authorities b/c always allows questions which they’ve resolved by designing a legal system to be reopened (J. Shapiro vs UPVC window Glasgow)
  • Task of legal interpreter is to impute to legal practice political objectives which designers of the system sought to achieverelevant purposes explain (not justify) the current practice. Should employ methodology which best harmonises or fits w/ these ideological objectives, regardless of their moral appeal.
  • Methodology is still grounded in social fact b/c specific purposes of legal system are matters of social fact & to uncover social objectives interpreter must analyze the institutional structure & determine which goals & values best explain why the legal system has its current shape. After all, if those in authority are trustworthy, which is what the law always supposes, then deferring to their judgment about how to attain the fundamental aims of the system is a highly effective strategy for actually attaining them
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Problems with Restrictions Formula

4.2 Problems with Restrictions Formula.

 

There is little to choose between Säger formula and that based on obstacles, and in cases such as Kraus, Schindler, and Kranemann the Court used both.

 

Problem 1:: Vague terminology. E.g in Carpenter, what was te obstacle that deterred Mr C from exercising his freedom to provide cross border services? – the separation of husband and wife which would eb detrimental to their family life, or the emotional distress? .. Some cases come close to saying that mere existence of national rule = restriction. This was similar as the Dentist Calgary

 

Problem 2: It makes no reference to size or scale of impediment: Graf indicates we need more than just remote impediment, in most cases it still takes very little to engage Treaties, e.g. Bosal, court found breach of art 49 because Dutch tax rule might “dissuade” parent company from carrying out its activities through intermediary est in another Member State. This decision cost the Dutch treasury millions.

 

Problem 3: Courts inability to deal with justifications that are of political/social policy nature. Demonstrated by facts of Viking. The one with reflagging the ship in Estonia to pay the seamen lower wages.(p 259). In United Pan Europe, however, Court took a more deferential approach. Diverging case law generates unpredictability

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