Places

Het Kasteel, Melkweg 1, Groningen (Monday and Tuesday) and

Harmonie Building, Faculty of Law, University of Groningen, Oude Kijk in’t Jatstraat 26, Groningen (Wednesday, Thursday and Friday)

Teachers

Prof. Tuomas Ojanen (University of Turku) Prof. Jukka Mähönen (University of Turku) Ass. Prof. Torben Spaak (Uppsala University) Ass. Prof. Minna Gräns (Uppsala University) Prof. Pauline Westerman (University of Groningen) Prof. Mark Wissink (University of Groningen)

Main Topics

1. Theories of legal reasoning (Spaak)
2. The demarcation between law and politics (Westerman)
3. Goal-reasons and rightness reasons (Westerman)
4. Pragmatism, economics and legal interpretation (Mähönen)
5. Bidirectional reasoning in legal decision-making (Gräns)
6. Interpretation of law in a multi-level legal order (Wissink)
7. The role of fundamental and human rights in the interpretation of EU law (Ojanen)

Main Topics

1. Theories of legal reasoning (Ass. Prof. Torben Spaak, Uppsala) The aim of these seminars is to introduce the doctoral students to a couple of normative theories of legal reasoning. The seminars should be of interest to doctoral students in general, since the judge’s methodological considerations will influence his reasoning and, therefore, his decisions, especially in hard cases. The theories under consideration aim, inter alia, to give the judge the kind of concrete guidance he needs when faced with a hard case. To determine whether any of these theories can actually give the judge the kind of concrete guidance he needs, we apply each theory to a case by the European Court of Justice, viz. the Cilfit case. Compulsory reading: Torben Spaak, Theories of Legal Reasoning, chapter 5: Ronald Dworkin’s Theory of Legal Reasoning, forthcoming, p.71-87. Torben Spaak, Theories of Legal Reasoning, chapter 4: Neil MacCormick’s Theory of Legal Reasoning, forthcoming, p.60-70. EU, Cilfit case 81982 (http://www.bailii.org/eu/cases/EUECJ/1982/R28381.html), added with the opinion of the Advocate General. Recommended reading: Ronald Dworkin, Hard Cases, Harvard Law Review 88.6 (1975), p. 1057-1109. Neil MacCormick, “Argumentation and Interpretation in Law”, in: Ratio Juris 6:1 (1993) pp. 16-29.
2. The demarcation between law and politics (Prof. Pauline Westerman, Groningen) Central to this session will be the question whether it is a) possible and b) justified to take the distinction between law and politics for granted. Both questions are answered negatively by the two representatives of the Critical Legal Studies (CLS) movement which will be discussed during this session. The –compulsory-text is: R.M.Unger, Legal Analysis as Institutional Imagination, Modern Law Rev. Vol. 59, No 1, 1996, pp.1-23, who criticises the way the distinction is unreflectively adopted in legal scholarship. A similar line of argument is developed in the –optional-text by Duncan Kennedy, The Political Stakes in ‘Merely Technical’ Issues in Contract Law, European Review of Private Law, 1: 7-28, 2001, but here the use of the distinction is exemplified by illustrations drawn from contract law .
1. Goal-reasons and rightness reasons (Prof. Pauline Westerman, Groningen) This session will be devoted to the analysis of two distinct types of arguments that recur in judicial decision-making. We will examine to which extent the distinction between goal-reasons and rightness reasons, drawn here by R.S. Summers, is able to clarify the differences in the approaches that have been presented in the whole summer-course. There is a shorter and a longer version of Summer’s article. The shorter version (Form and Substance in Legal Reasoning, in: Essays on the Nature of Law and Legal Reasoning, Berlin 1992, pp. 138-153) is obligatory. However, for additional
2. clarification and illustrative examples one may turn to the larger and optional article (Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justifications in: Cornell Law Review, Vol. 63/ No 5, 1978, pp.707-788). Although the latter article is longer, it may be easier accessible.
3. Pragmatism, economics and legal interpretation (Prof. Jukka Mähönen, Turku) The aim of this session is to introduce the students to American legal pragmatism through one of its major proponents, namely Judge Richard A. Posner. Judge Posner is also a leading figure in the law and economics movement. Both themes are discussed during the lectures. As an introduction to Posner’s pragmatism and especially how he end to it in his adjudication, a recent short article by John F. Manning is given John F. Manning, Statutory Pragmatism and Constitutional Structure, Harvard Law Review, Vol. 120 (2007), pp. 1161-1174), accompanied by short introductions to history of legal pragmatism (Legal Pragmatism, Metaphilosophy, Vol. 35 (2004), pp. 147-159) and to modern interdisciplinary pragmatic legal scholarship (Legal Scholarship Today, Harvard Law Review, Vol. 115 (2002), pp. 1314-1326) by Posner himself. As a background text Posner’s major article The Problematics of Moral and Legal Theory (Harvard Law Review, Vol. 111 (1998), pp. 1637-1717) is introduced. This text reveals also the controversial relationship between Posner and another leading figure in American jurisprudence, Ronald Dworkin.
1. Bidirectional reasoning in legal decision-making (Ass. Prof. Minna Gräns, Uppsala) Scientific theories of how to interpret and apply legal norms are based on the assumptions that legal reasoning is unidirectional, from premises to conclusions, and that theoretically different legal concepts are treated as separate from each other. However, it has been shown that both these assumptions may be unrealistic in the context of practical legal decision making. The theory of bidirectional reasoning explains why practice deviates from theory and what are the consequences of this deviation. Literature:
1. Van Hoecke, Mark, Law as Communication, Ch. 7, Methodology of Law, 2002, pp. 125-185;
2. Van Hoecke, Mark, Lawyers’Legal Theory, in: Eng, Svein (ed.), Proceedings of the 21st IVR World Congress (Lund 12-27 August 2003), Stuttgart 2005, pp 19-27.
3. Gräns, Minna, Some Aspects of Legal Decision Making in the Light of Cognitive Consistency Theories, in: Wahlgren, Peter (ed.), Perspectives on Jurisprudence, Essays in Honor of Jes Bjarup, Scandinavian Studies in Law, Vol 48, Stockholm 2005, pp 100-122.
4. Interpretation of law in a multi-level legal order (Prof. Mark Wissink, Groningen) Courts must interpret the law. In a multi-level legal order, such as the European Union, they must often tackle interpretation of law at two levels: the European and the national level. A striking example of this is the duty to interpret national law in conformity with EC law. This duty is most problematic in cases between private parties in which national law does not fully reflect an EC Directive. In those cases a

national court is faced with three issues: the interpretation of EC law, the interpretation of its national law and the question whether both may be merged into an interpretation of its national law in conformity with EC law.

What determines the outcome? Does it matter in what order a court tackles these issues? Is just national law being changed into something in line with EC law, or is EC law also changed into something in line with the applicable national law? And what does this tell us about interpretation by courts? We will try to discuss these issues by reference to a number of examples. In advance, you might want to take a look at the following literature:

S. Prechal, Directives in EC Law, Second, Completely Revised Edition, Oxford University Press, 2005, chapter 8. Hans-W. Micklitz, The Politics of Judicial Co-operation in the EU, Cambridge University Press 2005, p. 424-460

7. The role of fundamental and human rights in the interpretation of EU law (Prof. Tuomas Ojanen, Turku) The normative status and weight of fundamental and human rights have significantly increased in the EU legal order in recent years. Today, fundamental and human rights potentially penetrate all areas of the EU legal order. As a consequence, fundamental and human rights also cut across various sub-disciplines of EU law, and researchers need to put their legal research into the context of these rights.

These sessions aim at analyzing the different ways in which fundamental and human rights can contribute to the interpretation and application of EU law by courts, administrative authorities and the EU legislature in the current state of evolution of EU law. A theoretical model of the operation of fundamental and human rights in a concrete legal decision is presented to indicate various ways in which fundamental and human rights norms can affect the interpretation of EU law in concrete cases. One source of inspiration of this theoretical model is the famous (Dworkian) distinction between principles and rules. A special focus is given on the effects of decisions by international human rights bodies, especially the European Court of Human Rights, on the interpretation and application of EU law. Background reading: Douglas-Scott, S., A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis, Common Market Law Review 43: 2006, pp. 629665; Dworkin, R., Taking Rights Seriously, 1977, 1978, Chapters II and IV; Tridimas, T., The General Principles of EC Law, 1999, Chapter 1; Weiler, J., The Constitution of Europe, Cambridge 1999, Chapter 3, pp.102-129.

Structure

The course will be given during five days (Monday-Friday), each of which consists of lectures given by the teachers, and work-shops during which the participating PhD-students present their own papers for further discussion. Each morning session consists of two slots; Slots may be filled with different subjects and teachers. The afternoon sessions on Monday, Tuesday and Thursday are dedicated to PhD presentations, chaired by a teacher. PhD presentations will as much as possible be organized in plenary meetings. If that should not be possible, parallel sessions will be organized, and if desirable thematically arranged.

Teaching methods

Each teacher will give a short introductory lecture, followed by interactive parts like workshops and discussions, where cases, assignments and prepared questions by students will be dealt with.

Each participating PhD student has to write a paper of approximately 10 pages with full references and footnoting, as if it were published in a reviewed (law) journal, or presented at a conference, understandable for a divergent audience. The aim of the papers is to present the PhD project including one or more methodological aspects related to the interpretation of law. During the presentations PhD students are not allowed to read their text, but should only use point by point notes. Furthermore, they have to prepare questions they would like to address at the summer school. PhD presentations consist of a 15 to 20 minute oral presentation, after which the paper will be refereed by two other PhD students, preferably each of which has been chosen from the other two collaborating universities. Each student will be informed in advance which paper he/she will have to referee. Each presentation with discussion will take 45 minutes at most.

Literature

The summer school is a 7½ ECTS course in the PhD training programme of the participating universities. The literature for this summer school contains 800 pages maximum. Each of the six teachers can provide 125 pages, 50 of which can be prescribed as compulsory, 75 of which can be presented as additional literature or case materials. The final list of literature will be published in April 2007, the course materials will be distributed no later than May 15^th 2007.

Application

Each faculty may sign up seven PhD students. Students have to apply for the summer school at the latest 28^th of April 2007. Applications have to be submitted by e-mail to the contact person of one’s own faculty (see top page). In the application the subject of the presentation has to be indicated. Notice that each faculty may use their own criteria for allowance. This arrangement is due to the limitation of maximum seven PhD students from each faculty.

In case the number of participants from Uppsala, Turku and Groningen is below 21, students from the University of Gent may apply. They should submit their application to the contact person of Groningen (see top page).

A definitive list of participants will be provided the 11^th of May 2007.

Time Schedule and deadlines

27-04-2007 Deadline application by the PhD’s for participation in the summer school 11-05-2007 Distribution of the definitive list of participants 15-05-2007 Distribution of course materials among the participants 20-06-2007 Deadline submission of papers by the PhD’s 30-06-2007 Distribution of the papers.

Accommodation and other practical issues

The summer school takes place at the Harmonie Building of the University of Groningen, Faculty of Law, Oude Kijk in’Jatstraat 26, Groningen. On Tuesday August 28^th, the University will be closed because of the holiday “Groningens ontzet”, The relief of Groningen. On that day, the summer school activities will take place in “Het Kasteel”, Melkweg 1, Groningen.

For accommodation, reservations have been made at the University Guesthouse, Kleine Kromme Elleboog 7-b, Groningen. (For each teacher from Turku and Uppsala, an apartment within the guesthouse has been booked. For each PhD from Turku and Uppsala, a private room with shower and toilet has been booked).

There will be a welcome party on Sunday night, 26^th of August 2007 from 18.00 o’clock in Restaurant Kaap Noord, Noorderhaven 63, Groningen.

1. Harmonie Building 3. “Het Kasteel” 5. Restaurant Kaap Noord
2. University Guesthouse 4. Railway Station 6. Groninger Museum