General Principles of Law - The Role of the Judiciary

IUS GENTIUM COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE

VOLUME 46

Series editors

Mortimer SellersUniversity of Baltimore

James MaxeinerUniversity of Baltimore

Board of Editors

Myroslava Antonovych, Kyiv-Mohyla AcademyNadia de Araújo, Pontifical Catholic University of Rio de JaneiroJasna Bakšic-Muftic, University of SarajevoDavid L. Carey Miller, University of AberdeenLoussia P. Musse Félix, University of BrasiliaEmanuel Gross, University of HaifaJames E. Hickey, Jr., Hofstra UniversityJan Klabbers, University of HelsinkiCláudia Lima Marques, Federal University of Rio Grande do SulAniceto Masferrer, University of ValenciaEric Millard, West Paris UniversityGabriël A. Moens, Curtin UniversityRaul C. Pangalangan, University of the PhilippinesRicardo Leite Pinto, Lusíada University of LisbonMizanur Rahman, University of DhakaKeita Sato, Chuo UniversityPoonam Saxena, University of DelhiGerry Simpson, London School of EconomicsEduard Somers, University of GhentXinqiang Sun, Shandong UniversityTadeusz Tomaszewski, Warsaw UniversityJaap de Zwaan, Erasmus University Rotterdam

More information about this series at http://www.springer.com/series/7888

Laura Pineschi Editor

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General Principles of Law - The Role of the Judiciary

EditorLaura PineschiDepartment of Law University of Parma Parma Italy

ISSN 1534-6781 ISSN 2214-9902 (electronic)Ius Gentium: Comparative Perspectives on Law and JusticeISBN 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 2015This 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.

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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

Foreword

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Contents

Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii

Part I General Principles and the Judiciary: Legal Theory and Courts’ Interactions

Principles and Disagreements in International Law (with a View from Dworkin’s Legal Theory) . . . . . . . . . . . . . . . . . . . . . . . . 3Gianluigi Palombella

Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Christopher J. Peters

General Principles of Law and Transnational Judicial Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45Elaine Mak

Recognition of International Law: From Formal Criteria to Substantive Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67Leonardo Marchettoni

The “Doctrine of Principles” in Neo-Constitutional Theories and the Principle of Reasonableness in Action . . . . . . . . . . . . . . . 79Francesco De Vanna

Contentsviii

Part II General Principles and the Judiciary: Legal Systems and Domestic Frameworks

Judicial Control of Juries and Just Results in the Common Law System: A Historical Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105Frederic N. Smalkin

General Principles of International Law: Struggling with a Slippery Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125Elena 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145Nicole 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171Michele 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193Fabio Pantano

Principle of Non-discrimination on the Grounds of Sexual Orientation and Same-Sex Marriage. A Comparison Between United States and European Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215Veronica Valenti

Healthcare Right and Principle of “Minimum Standards”: The Interpretation of the Judiciary in a Comparative Perspective . . . . . . 243Monica 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265Silvia Borelli

Discrimination for Sexual Orientation in Poland: The Role of the Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295Katarzyna Girdwoyn

Principle of Legality and Role of the Judiciary in Criminal Law: The Influence of the ECtHR Case Law on the Italian Legal System . . . . . 311Francesco Mazzacuva

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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.

Contributorsxii

Fabio Pantano is a Researcher in Labour Law at the Department of Law of the University of Parma, Parma, Italy.

Christopher J. Peters is a Professor of Law at the University of Baltimore, Balti-more, United States of America.

Laura Pineschi is a Professor of International Law at the Department of Law of the University of Parma, Parma, Italy.

Mortimer N.S. Sellers is Regents Professor at the University System of Maryland and Director of the Center for International and Comparative Law of the University of Baltimore, Baltimore, United States of America.

Frederic N. Smalkin is Chief United States District Judge of the District of Mary-land (Ret.), and Jurist-in-Residence at the University of Baltimore, Baltimore, Unit-ed States of America.

Veronica Valenti is a Researcher in Constitutional Law at the University of Parma, Parma, Italy.

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Abbreviations

ACHR American Convention on Human RightsACHPR African Charter on Human and Peoples’ RightsADA American with Disabilities ActADEA Age Discrimination in the Employment ActBAILII British and Irish Legal Information InstituteBVerfG BundesverfassunggerichtCAT Convention against TortureCJEU Court of Justice of the European UnionCRA Civil Rights ActCTR Claims TribunalDCFR Draft Common Frame of ReferencesDOMA Defense of Marriage ActEACLE European American Consortium for Legal EducationEC European CommunityECHR Convention for the Protection of Human Rights and Fundamental

FreedomsECJ European Court of JusticeECR European Court ReportsECtHR European Court of Human RightsEEC European Economic CommunityEPA The Equal Pay ActETS European Treaty SeriesEU European UnionEWHC High Court of England and WalesGC Grand ChamberI/ACommHR Inter-American Commission on Human RightsIACtHR Inter-American Court of Human RightsICCPR International Covenant on Civil and Political RightsICESCR International Covenant on Economic, Social and Cultural RightsICJ International Court of JusticeICJ Rep. International Court of Justice Reports

Abbreviationsxiv

ICTY International Criminal Tribunal for the Former YugoslaviaILC International Law CommissionILM International Legal MaterialsISAF International Security Assistance ForceITLOS International Tribunal of the Law of the SeaLGBT Lesbian, Gay, Bisexual and TranssexualLJN Landelijk Jurispr NrNWO Netherlands Organization for Scientific ResearchOAS Organization of American StatesOJ Official JournalOSPAR Oslo/Paris Convention (for the Protection of the Marine Environ-

ment of the North-East Atlantic)PCIJ Permanent Court of International JusticePECL Principles of European Contract LawQB Queen’s BenchRBPFP Reinstatement and the Payment of Back Pays and Front PaysRC Reparatory CompensationRIAA Reports of International Arbitral AwardsSCR Supreme Court ReportsTEU Treaty on European UnionTFEU Treaty on the Functioning of the European UnionUK United KingdomUKHL United Kingdom House of LordsUKSC Supreme Court of the United KingdomUN United NationsUNCLOS United Nations Convention on the Law of the SeaUNTS United Nations Treaty SeriesUPDF Uganda People’s Defense ForceUS United StatesUSC United States CodeVCLT Vienna Convention on the Law of TreatiesWTO World Trade Organization

xv

Note to the Reader

– Unless otherwise stated, all internet websites cited in the book have been last accessed in March 2015.

– After the Treaty of Lisbon, the Court of Justice of the European Union (CJEU) includes the Court of Justice (ECJ), the General Court (formerly, Court of First Instance), and specialized courts (see Article 19, para. 1, TEU).

xvii

Introduction

In an increasingly complex world, the nature and function of law is rapidly changing. Arising from multiple sources and layers of regulation, legal rules progressively increase in number and tend to become more specific. The result is a fragmented legal landscape, in which contradictions are almost inevitable. Often, the task of dealing with this complexity is left to the judiciary.

Against this background, general principles of law play a prominent role in every legal system as they permeate the daily activity of domestic, regional, and interna-tional courts. Not only general principles of law (e.g., independence and impartiality) have a significant impact on the activity of the judiciary. Indeed judges have a critical role in identifying and interpreting principles, thus determining their status and, in some instances, their normative content within a given legal system. It is not uncom-mon for national and international tribunals to resort to general principles in their rea-soning as a tool to ensure a dynamic interpretation of legal rules. General principles are used to adapt existing rules to new developments, needs, or values, to fill lacunae, and to contribute to the development of new rules. Sometimes judges “transplant” general principles from one legal system to another; frequently, international tribu-nals contribute to the unity of the international legal order by means of trough the application of general principles. Thus, in a world of legal pluralism and fragmented regulation, general principles often provide those bridges which are necessary to ensure that the law maintains a minimum degree of consistency and coherence.

It is beyond the scope of this book to provide a systematic and comprehensive investigation of a very broad topic. Rather, the book intends to offer some reflec-tions, mainly in a comparative perspective and from different horizons, through the contribution of European and US scholars from various legal fields.

The volume is in four sections. In the first section, issues of legal theory are examined in light of national and international jurisprudence. The second section explores the role of general principles in selected legal systems, i.e., international law, European Union law, and common law systems. The third section features an analysis of certain general principles from a comparative perspective, with par-ticular focus on the comparison between European and American experiences. The fourth and the last section includes chapters on the role of judges and general principles in given areas of law.

Introductionxviii

Obviously, a project of this kind risks ending up with a fragmentary set of individ-ual studies. To avoid (or, at least, to reduce) this risk, the authors have been invited to strictly adhere to the general topic. As a result, despite an apparently patchwork format (or “impressionistic” approach), all the chapters are connected by a common thread: a reflection on how the interpretation, application, and development of gen-eral principles of law by the judiciary contribute to the evolution of legal systems, at the domestic and international levels, and further their reciprocal interactions.

A final conclusion is not feasible in view of the heterogeneous nature of general principles in different legal orders, the continuous evolution of social needs and values, and (sometimes) the ambiguous approach of certain courts and tribunals. Nevertheless, some basic considerations can be developed from the following contri-butions. First, all the chapters confirm the important, if not decisive, role that judges continue to play in the “shaping” of national and international law through the inter-pretation and application of general principles. Second, it is also evident that certain fundamental principles play a prominent role against the risk of an unfettered judi-cial discretion. As a result, general principles may be both a powerful tool for courts and tribunals in the exercise of a quasi-legislative power and a meaningful factor of legal certainty. Finally, as many contributions to this book show, the references by domestic courts to foreign general principles–or principles developed at the interna-tional level–are increasingly frequent. This “dialog” and interplay among courts may thus prove fruitful, by enhancing the respect of fundamental rights and values.

Some of the chapters collected in this volume were provisionally presented and discussed at the Annual Conference of the EACLE, held on 20 May 2014 at the University of Parma (Italy) and all the authors are established or early-career scholars at the law schools or faculties involved in this scientific network. The aim is to advance mutual knowledge and understanding of legal systems on both conti-nents in accordance with EACLE’s purposes and traditions.

Several institutions and persons made it possible to bring this project to its con-clusion. First, I wish to thank the Department of Law of the University of Parma, which hosted the EACLE Conference and to the members of the scientific com-mittee established in view of the Conference (Professors Alberto Cadoppi, Antonio D’Aloia and Enrico Gragnoli). I am particularly grateful to them, for their inspir-ing comments and suggestions, as well as to Malaika Bianchi, researcher in criminal law, and to Cesare Pitea, researcher in international law, who contributed their enthu-siasm and inexhaustible energy to the success of the Conference. My deepest grati-tude is due to all the scholars who generously contributed their time and intellectual resources to produce this collective work. Also on their behalf, I warmly thank Elena Carpanelli (Ph.D. candidate in international law) for having patiently and compe-tently ensured a uniform style in the setting up of this volume. It goes without saying that any mistake or inaccuracy remains the sole responsibility of the editor.

ParmaMarch 2015

Laura PineschiProfessor of International Law