Book contents
- Frontmatter
- Contents
- List of Abbreviations
- List of Authors
- Introduction
- PART I RESCUE MECHANISMS AND MONETARY POLICY
- PART II THE IMPACT OF THE FINANCIAL CRISIS ON THE BANKING SECTOR AND CAPITAL MARKETS
- PART III THE FINANCIAL CRISIS AND TAX LAW
- PART IV THE FINANCIAL CRISIS, CONSUMERS AND CONSUMER LAW
- PART V THE FINANCIAL CRISIS AND COMPETITION LAW
- PART VI THE FINANCIAL CRISIS, RESTRUCTURING AND INSOLVENCY LAW
- PART VII THE SOCIAL DIMENSION OF THE FINANCIAL CRISIS AND EU CITIZENSHIP
- PART VIII REFLECTIONS ON THE IMPACT OF THE FINANCIAL CRISIS ON THE GENERAL EUROPEAN LEGAL FRAMEWORK AND THE FUNDAMENTAL “EUROPEAN IDEA”
- Legal Certainty after the Crisis. The Limits of European Legal Imagination
- The New Role of Judges in the EU. Going Back to the Middle Ages
- Exploring the European Crisis's Political Discourse. Europe as a Consciousness, Europe as a Narrative
The New Role of Judges in the EU. Going Back to the Middle Ages
from PART VIII - REFLECTIONS ON THE IMPACT OF THE FINANCIAL CRISIS ON THE GENERAL EUROPEAN LEGAL FRAMEWORK AND THE FUNDAMENTAL “EUROPEAN IDEA”
Published online by Cambridge University Press: 13 December 2017
- Frontmatter
- Contents
- List of Abbreviations
- List of Authors
- Introduction
- PART I RESCUE MECHANISMS AND MONETARY POLICY
- PART II THE IMPACT OF THE FINANCIAL CRISIS ON THE BANKING SECTOR AND CAPITAL MARKETS
- PART III THE FINANCIAL CRISIS AND TAX LAW
- PART IV THE FINANCIAL CRISIS, CONSUMERS AND CONSUMER LAW
- PART V THE FINANCIAL CRISIS AND COMPETITION LAW
- PART VI THE FINANCIAL CRISIS, RESTRUCTURING AND INSOLVENCY LAW
- PART VII THE SOCIAL DIMENSION OF THE FINANCIAL CRISIS AND EU CITIZENSHIP
- PART VIII REFLECTIONS ON THE IMPACT OF THE FINANCIAL CRISIS ON THE GENERAL EUROPEAN LEGAL FRAMEWORK AND THE FUNDAMENTAL “EUROPEAN IDEA”
- Legal Certainty after the Crisis. The Limits of European Legal Imagination
- The New Role of Judges in the EU. Going Back to the Middle Ages
- Exploring the European Crisis's Political Discourse. Europe as a Consciousness, Europe as a Narrative
Summary
INTRODUCTION
Courts and judges are key elements in any legal order. The general rules created by the legislator aim to resolve social conflicts, but in order to achieve this goal it is necessary to transform these general rules into specific obligations. Of course, this transformation of general rules into specific obligations is done not only by the courts but also by any other legal actor (lawyers, notaries, officials, etc.) and by individuals; but the position of courts is a special one.
Courts not only identify specific rules deduced from general rules, but also transform these “deduced” specific rules into positive norms (specific norms). It is possible to deduce specific prescriptions from a general rule or from a set of general rules. Anyone can, as an intellectual activity, determine the result of confronting a specific fact with general rules, i.e. which is the specific norm in a specific situation taking into consideration the applicable set of general rules, but this specific norm is not yet a positive norm; it is not a part of the “formal” set of rules. To be considered a positive norm, and not merely a deduced rule, some kind of “formalisation” is necessary. The administration and the courts are entitled to develop this formalisation process, which involves introducing positive individual norms into the normative system. It is claimed that these norms are merely deduced from the general rules, but they are part of the positive legal order not because this deduction, but because of their formalisation by the administration or the courts. In some cases, these specific norms can be expelled from the normative system as a consequence of a formal decision, but without this formal derogation, the specific positive norm must be considered part of the juridical order, even if it contradicts the general rules that should have been applied in the creation of the specific rules.
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- Information
- EU Law after the Financial Crisis , pp. 301 - 316Publisher: IntersentiaPrint publication year: 2016