Journal Article

Intersectional litigation and the structuring of a European interpretive community

Marco Dani

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 9, issue 3-4, pages 714-736
Published in print October 2011 | ISSN: 1474-2640
Published online October 2011 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mor014
Intersectional litigation and the structuring of a European interpretive community

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  • Constitutional and Administrative Law
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In intersectional litigation European courts face conflicts between rival claims of legal authority that, in the absence of a unified European constitutional framework, may receive only context-dependent solutions. This poses critical challenges for judicial bodies: not only are they expected to make up for the absence of an overarching constitutional structure and ensure legal coherence, but they are also put at the forefront of articulating and accommodating the conflict between the largely regulatory framework of the EU and states’ republican constitutionalism. The actual interpretive strategies employed in intersectional disputes, nevertheless, do not appear entirely up to that task. Most of the time, litigation gives rise to a series of judgments on the same or similar issues that, although procedurally connected, are conceived of more as segmented and isolated episodes than coordinated judicial efforts. To cope with these shortcomings, the essay calls for the structuring of a European interpretive community and proposes ‘contextual deference’ as an interpretive strategy promoting external coherence between judicial rulings crafted in distinct legal orders. Accordingly, courts are required to frame cases through their native legal languages and defer to the interpretive and normative claims of related legal systems. Although ‘contextual deference’ establishes a presumption in favor of outside claims and standards of adjudication, it also admits its rebuttal if courts were to decide that the normative claims of their native legal order should prevail.

Journal Article.  11375 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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