'Legal Perfectionism in European Law?' - Professor Jacco Bomhoff: CELS Seminar

Duration: 42 mins 25 secs

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Description:	Professor Jacco Bomhoff of the London School of Economics gave a lunchtime seminar entitled "Legal Perfectionism in European Law?" on Wednesday 19th October 2011 at the Faculty of Law as a guest of CELS (the Centre for European Legal Studies). For more information see the CELS website at http://www.cels.law.cam.ac.uk/.


Created:	2011-10-19 14:09
Collection:	Cambridge Centre for European Legal Studies (CELS) Seminar Series MOVED
Publisher:	University of Cambridge
Copyright:	Mr D.J. Bates
Language:	eng (English)
Keywords:	Legal Perfectionism; EU; Europe; European Union; Law; United States;


Abstract:	This paper asks whether a conception of ‘legal perfectionism’ could be part of a dominant European working theory of law; whether, if so, this idea of perfectionism could tell us anything distinctive about law in Europe; and, in particular, what implications such perfectionism might have for the role of law in the European integration project. The starting point for this paper is the commonplace observation that legal theory and practice look very different as between Europe and the United States, despite some pressures towards convergence. Out of many possible examples of these differences, the paper looks at a range of doctrines and perspectives in constitutional law that are familiar to American audiences, but apparently largely absent from European constitutional legal discourse, and that could all, in different ways, be called anti-perfectionist. They include: insistence on a role for prophylactic rules; ‘underenforced’ constitutional norms; competing judicial ‘tests’ as the ‘implementation’ rather than interpretation of constitutional texts; advocacy of positively ‘second-best’ interpretations of constitutional clauses; ‘clause-bound’ interpretation; and minimalism, originalism, proceduralism and other instances of ‘flights from substance’. I ask whether these and other examples add up to one or more coherent conceptions of ‘anti-perfectionism’ in law (to be distinguished from related concepts in political philosophy), and whether law in Europe might be characterized by the negation of such anti-perfectionist tendencies. These questions should be of particular relevance to the narrower context of EU law, given recent debates on the tensions between classic conceptions of law and legality and the pragmatic and experimental nature of much EU governance.

Abstract:

This paper asks whether a conception of ‘legal perfectionism’ could be part of a dominant European working theory of law; whether, if so, this idea of perfectionism could tell us anything distinctive about law in Europe; and, in particular, what implications such perfectionism might have for the role of law in the European integration project.

The starting point for this paper is the commonplace observation that legal theory and practice look very different as between Europe and the United States, despite some pressures towards convergence. Out of many possible examples of these differences, the paper looks at a range of doctrines and perspectives in constitutional law that are familiar to American audiences, but apparently largely absent from European constitutional legal discourse, and that could all, in different ways, be called anti-perfectionist. They include: insistence on a role for prophylactic rules; ‘underenforced’ constitutional norms; competing judicial ‘tests’ as the ‘implementation’ rather than interpretation of constitutional texts; advocacy of positively ‘second-best’ interpretations of constitutional clauses; ‘clause-bound’ interpretation; and minimalism, originalism, proceduralism and other instances of ‘flights from substance’.

I ask whether these and other examples add up to one or more coherent conceptions of ‘anti-perfectionism’ in law (to be distinguished from related concepts in political philosophy), and whether law in Europe might be characterized by the negation of such anti-perfectionist tendencies. These questions should be of particular relevance to the narrower context of EU law, given recent debates on the tensions between classic conceptions of law and legality and the pragmatic and experimental nature of much EU governance.

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