ART 267: PRELIMINARY RULINGS

Basics of the Preliminary Reference System

    • Historical introduction: rare for international org to enter into direct correspondence with MSs. At that time, EC law was thought to be specialised area – hence need to refer questions of interpretation to specialised courts. Manchester Taxi 1928 vs Crawford 1990 So started off with horizontal relationship – but now, moving to be one of vertical hierarchy
      • Simmental, 1976: emphasis that r/s is one of cooperation (horizontal) not hierarchy – ECJ not empowered to investigate facts/look at grounds and purpose for request. However, in this case, ECJ said where question of EU law is decided, it is automatically applicable to all MSs – not just to the MS which requested for it.

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The Moral Scale

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  • As considering whole range of moral issues, we may conveniently imagine a kind of scale or yardstick which begins at bottom with most obvious demands of social living and extends to highest reaches of human aspiration.
    • “Somewhere along that line there is an invisible pointer where the pressure of duty leaves off and the challenge of excellence begins.”[10]
    • War of moral argument is over location of this pointer.
    • To find it, must know what is perfect life – if you accept this, then drawing line is pointless because MOD must borrow standards from MOA.
      • This view has led to diametrically opposed conclusions concerning the objectivity of moral judgments.
        • One side: Fact of experience that we know and agree on what is bad, thus must follow that we have shared picture of what is perfectly good (Platonic Socrates)
        • Other side: Men do not agree on what is perfectly good, our apparent agreement of what is bad is perhaps an illusion, born of social conditioning, habituation, and shared prejudice.
        • Both rest on idea: must know good to know bad
  • In whole field of human purpose, we find rejections of idea that we must know perfectly good to identify the bad
    • E.g No human tool is perfectly suited to any task, but designed to accomplish indefinite range reasonably well.

THE TWO MORALITIES

  • Content of chapters – because unhappy with existing literature about relation between law and morality. Two major deficiencies:
    • 1. Failure to clarify the meaning of morality itself. It is assumed we all know what morality means! But that is not the case.
      • In chapter 1, I try to redress this by highlight distinction between morality of duty + morality of aspiration.
    • 2. Neglect for Morality that makes law possible. Focus on “legal justice”, treat like alike, but little recognition that problem thus adumbrated is only one aspect of much larger problem – clarifying directions of human effort essential to maintain any system of law, even one whose ultimate objectives may be evil.
  • Chp. 3 attempt to bring the analysis of the first two chapters into relation with various schools of legal philosophy.
  • Chp4 seeks to show how proper respect for internal morality of law limits kinds of substantive aims that may be achieved through legal rules – closes by showing how something like a substantive “natural law” may be derived from the morality of aspiration.

The Moralities of Duty and Aspiration as seen in abogados de accidentes de carro

  • Distinction between morality of aspiration and morality of duty
    • Morality of aspiration most plainly exemplified in Greek philosophy: it is the morality of the Good life, or excellence, of fullest realization of human powers.

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Article 8

Where a particularly important facet of an individual’s existence or identity is in issue under Art 8,
the court will be less likely to accept that a contracting party should be afforded a broad discretion
and margin of appreciation e.g. X and Y case (young mentally handicapped girl who had been
sexually assault yet only a civil claim possible: breach of Art 8); Z v Finland (fundamental importance
of medical data); and Dudgeon (homosexual activity- sexuality most intimate part of one’s identity;
despite morality usually being large margin of appreciation).
Where two parties’ rights in issue e.g. Evans (wish of women to become pregnant using embryos
frozen vs man’s right- consent of both required: wide margin of appreciation as legislative scheme
had come after a lot of consideration, consultation and debate).
S and Marper – retaining of DNA data but UK alone in adopting such an extensive scheme so no wide
margin of appreciation.
Handyside – large margin where areas of morality.
Cases where wide margin of appreciation allowed because of lack of common ground in Europe can
(e.g. Rees – changing entries on birth certificates; cf Dudgeon- no longer appropriate in most states
for homosexual practices to have criminal sanctions) be seen as further examples of the principle
that the nature of the individual right determines the breadth of the margin since a divergence in
national law may indicate that the nature and degree of importance of the individual interest is still
in the process of being understood, recognised and accepted.

 

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