General Principles of Law - The Role of the Judiciary

330 Pages·2015·2.792 MB·English

by  Laura Pineschi (eds.)

Ius Gentium: Comparative Perspectives on Law and Justice 46
Laura Pineschi E ditor
General
Principles of
Law - The Role
of the Judiciary
General Principles of Law -
The Role of the Judiciary
IUS GENTIUM
COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE
VOLUME 46
Series editors
Mortimer Sellers
University of Baltimore
James Maxeiner
University of Baltimore
Board of Editors
Myroslava Antonovych, Kyiv-Mohyla Academy
Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro
Jasna Bakšic-Muftic, University of Sarajevo
David L. Carey Miller, University of Aberdeen
Loussia P. Musse Félix, University of Brasilia
Emanuel Gross, University of Haifa
James E. Hickey, Jr., Hofstra University
Jan Klabbers, University of Helsinki
Cláudia Lima Marques, Federal University of Rio Grande do Sul
Aniceto Masferrer, University of Valencia
Eric Millard, West Paris University
Gabriël A. Moens, Curtin University
Raul C. Pangalangan, University of the Philippines
Ricardo Leite Pinto, Lusíada University of Lisbon
Mizanur Rahman, University of Dhaka
Keita Sato, Chuo University
Poonam Saxena, University of Delhi
Gerry Simpson, London School of Economics
Eduard Somers, University of Ghent
Xinqiang Sun, Shandong University
Tadeusz Tomaszewski, Warsaw University
Jaap de Zwaan, Erasmus University Rotterdam
More information about this series at http://www.springer.com/series/7888
Laura Pineschi
Editor
General Principles
of Law - The Role
of the Judiciary
1 3
Editor
Laura Pineschi
Department of Law
University of Parma
Parma
Italy
ISSN 1534-6781 ISSN 2214-9902 (electronic)
Ius Gentium: Comparative Perspectives on Law and Justice
ISBN 978-3-319-19179-9 ISBN 978-3-319-19180-5 (eBook)
DOI 10.1007/978-3-319-19180-5
Library of Congress Control Number: 2015939924
Springer Cham Heidelberg New York Dordrecht London
© Springer International Publishing Switzerland 2015
This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part
of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations,
recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission
or information storage and retrieval, electronic adaptation, computer software, or by similar or
dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are exempt
from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publisher nor the
authors or the editors give a warranty, express or implied, with respect to the material contained
herein or for any errors or omissions that may have been made.
Printed on acid-free paper
Springer International Publishing AG Switzerland is part of Springer Science+Business Media
(www.springer.com)
Foreword
The papers collected in this volume grew out of a conference on “General
Principles of Law and the Judiciary” held at the University of Parma in May,
2014, at the 13th annual meeting of the European-American Consortium for Legal
Education (EACLE), under the direction of Prof. Laura Pineschi.
The chapters that follow speak for themselves and are a tribute to the editor and
organizers at Parma. The formal program is reflected in the table of contents. Less
immediately visible, but equally valuable, were the many opportunities for seren-
dipitous mutual enlightenment to be found the less formal interstices of a beautiful
setting, among kind and generous hosts.
This recalls the broader project, of which this volume and the Parma confer-
ence are such excellent exempla—the pursuit of justice and the rule of law through
transnational dialog, the exchange of insights, and the comparison of similar but
differing experiences. Law often is and sometimes should be parochial in its devel-
opment, but lawyers and legislators will benefit from better understanding the con-
tingency (and frequent imperfections) of their own local practices and institutions.
Europe and the USA provide particularly useful opportunities for mutual
advancement in their shared (but inevitably partial and imperfect) commitment to
the liberal and republican principles of universal human dignity and equal justice
for all. When shared general principles yield differing practical results, we can and
should question the unstated assumptions of our parochial traditions.
Experience in every nation has shown a strong and independent judiciary to be
the necessary basis for any just rule of law. Laws and their interpretation require
the support and guidance of fundamental legal principles, many of which tran-
scend local particularities and are valuable everywhere. This volume challenges
our preconceptions and offers insights to improve judges and justice in any legal
system that cares to serve the people that it rules. The judiciary is and always will
be the last best guardian of the general and universal principles that justify and
animate the law.
Baltimore, MD, USA Mortimer N.S. Seller
v
Contents
Abbreviations ................................................. xiii
Introduction ................................................... xvii
Part I G eneral Principles and the Judiciary:
Legal Theory and Courts’ Interactions
Principles and Disagreements in International Law
(with a View from Dworkin’s Legal Theory) ........................ 3
Gianluigi Palombella
Legal Formalism, Procedural Principles, and Judicial
Constraint in American Adjudication .............................. 23
Christopher J. Peters
General Principles of Law and Transnational Judicial
Communication ................................................ 45
Elaine Mak
Recognition of International Law: From Formal Criteria
to Substantive Principles ........................................ 67
Leonardo Marchettoni
The “Doctrine of Principles” in Neo-Constitutional
Theories and the Principle of Reasonableness in Action ............... 79
Francesco De Vanna
vii
viii Contents
Part II G eneral Principles and the Judiciary: Legal Systems
and Domestic Frameworks
Judicial Control of Juries and Just Results in the Common
Law System: A Historical Perspective ............................. 105
Frederic N. Smalkin
General Principles of International Law: Struggling
with a Slippery Concept ......................................... 125
Elena Carpanelli
“Please, Handle with Care!”—Some Considerations on the Approach
of the European Court of Justice to the Direct Effect of General
Principles of European Union Law ................................ 145
Nicole Lazzerini
Part III General Principles and the Judiciary
in a Comparative Perspective
Principio di determinatezza and the Void-for-Vagueness Doctrine
in Constitutional Litigation: The Italian Corte Costituzionale
and the United States Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Michele Boggiani
Anti-discrimination Law and Limits of the Power of Dismissal:
A Comparative Analysis of the Legislation and Case Law
in the United States and Italy ..................................... 193
Fabio Pantano
Principle of Non-discrimination on the Grounds of Sexual
Orientation and Same-Sex Marriage. A Comparison Between
United States and European Case Law ............................. 215
Veronica Valenti
Healthcare Right and Principle of “Minimum Standards”:
The Interpretation of the Judiciary in a Comparative Perspective ...... 243
Monica Cappelletti
Contents ix
Part IV The Role of the Judge and General Principles
in Selected Issues and Case Studies
The (Mis)-Use of General Principles of Law: Lex Specialis
and the Relationship Between International Human Rights
Law and the Laws of Armed Conflict .............................. 265
Silvia Borelli
Discrimination for Sexual Orientation in Poland:
The Role of the Judiciary ........................................ 295
Katarzyna Girdwoyn´
Principle of Legality and Role of the Judiciary in Criminal Law:
The Influence of the ECtHR Case Law on the Italian Legal System ..... 311
Francesco Mazzacuva
Contributors
Michele Boggiani is a Ph.D. Candidate in Criminal Law at the Department of Law
of the University of Parma, Parma, Italy.
Silvia Borelli is Principal Lecturer in International Law and Director of Research
at the University of Bedfordshire, Bedfordshire, United Kingdom, and Visiting
Professor at the Department of Law of the University of Parma, Parma, Italy.
Monica Cappelletti is a Research Fellow in Comparative Public Law at the
Department of Law of the University of Parma, Parma, Italy.
Elena Carpanelli is a Ph.D. Candidate in International Law at the University of
Milan-Bicocca, Milan, Italy.
Francesco De Vanna is a Ph.D. Candidate in Legal Theory at the Department of
Law of the University of Parma, Parma, Italy.
Katarzyna Girdwoyn´ is an Assistant Professor in Criminal Law at the University
of Warsaw, Poland.
Nicole Lazzerini is a Research Fellow in European Union Law at the Department
of Law of the University of Parma, Parma, Italy.
Elaine Mak is a Professor of Empirical Study of Public Law at the Erasmus Uni-
versity Rotterdam, The Netherlands.
Leonardo Marchettoni is a Researcher in Legal Theory at the Department of Law
of the University of Parma, Parma, Italy.
Francesco Mazzacuva is a Research Fellow in Criminal Law at the Department of
Law of the University of Parma, Parma, Italy.
Gianluigi Palombella is a Professor of Legal Theory at the Department of Law
of the University of Parma, Parma, Italy, and at Scuola Superiore Sant’Anna, Pisa,
Italy.
xi