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Past events

The fist conference was organized in 2009 by prof. Marko Novak and Vojko Strahovnik (European Faculty of Law) with the title Legal argumentation and the challenges of modern Europe in Nova Gorica from October 15th – 16th 2009. The following papers were presented:
  • prof. dr. Guenther Kreuzbauer “Rationality of Jurisprudence: A comparison of the legal approach to rationality with alternative ‘rationality producing technologies (RPT’)
  • prof. dr. Giovanni Tuzet and prof. dr. Damiano Canale “Inferring the intention”
  • dr. Vojko Strahovnik “The similarities between legal and moral argumentation”
  • dr. Matej Avbelj “Integrity between Polities and Legal Orders”
  • doc. dr. Marko Novak “How the context of discovery influences the context of justification in legal adjudication?”
  • prof. dr. Ivan Padjen “Rationality of Legal Scholarship”
  • prof. dr. sc. Marko Petrak “Regulae iuris and legal argumentation”
  • as. mag. Luka Burazin “Antinomy between general principles of law”
Here is a link to conference program and info.


In 2010 the conference was organized jointly by European Faculty of Law in Nova Gorica and Faculty of Government and European Studies. The event took place in Nova Gorica,  from October 29. - 30. 2010. The conference featured two keynote lectures given by Professors Sartor and Palombella and three panels: a. General Legal Theory and Legal Argumentation; b. Law beyond the State and Global Governance, and c. Selected issues in Legal Philosophy.
  • Keynote lecture: Giovanni Sartor: "Defeasibility in Legal Reasoning"
  • Keynote Speech: Gianluigi Palombella: "Global Law and the Law on the Globe. Layers, Legalities, and the Rule of Law Principle"

Panel I: Legal Argumentation
  • Günther Kreutzbauer: "Legal rationality and argumentative justification"
  • Damiano Canale and GiovanniTuzet: "One, None, And a Hundred Thousand Legal Systems. Use and Abuse of Intratextual Argumentation in Law"
  • Andrej Kristan: "Legisprudence and Argumentation"

Panel II: Law beyond the State and Global Governance
  • Matej Avbelj: "The Idea of Pluralism as a Master Narrative"
  • Jernej Letnar Černič: "Corporate Obligations Under the Human Right to Water"
  • Giusepe Martinico: "The EU As a Complex Legal System"

Panel III: Selected Issues in Legal Philosophy
  • Marko Novak: "A Typological Reading of Legal Theories’ Epistemology"
  • Vojko Strahovnik: "Raz on reasons, principles and guiding"
  • Rok Svetlič: "One Right Answer Thesis« - Between R. Dworkin and G.W.F. Hegel"
  • Luka Burazin: "Hegel's Understanding of Damage Reparation from the Standpoint of Contemporary General Theory and Philosophy of Law"
Here is a link to pictures and a book of abstracts form this event.


In 2011 the conference took place in Nova gorica from November 11.-12. The program consisted of the following talks (link: Book of abstracts):

Section 1: Issues in Legal Argumentation
- Giovanni Tuzet, “Truth On Trial. Inquiry or advocacy in legal argumentation?”
- Andrej Kristan, “Truth in Legal Discourse”
- Žaklina Harašić, “Rationality in Legal Decisions”
- Alessio Sardo, “Three Theories of Judicial Balancing: A Comparison”

Section 2: Perspectives on Legal Theory
- Marko Novak, “Explanatory Interpretation As an Outcome of Legal Interpretation”
- Luka Burazin, “Indirectly and Directly Evaluative Legal Theory: A Reply to Julie Dickson”
- Ivana Tućak, “Hohfeld’s Concept of Immunity”
- Mario Krešić, “Theory of Adjudication and Interstate Legal Order”

Section 3: Theory of EU Law and Beyond
- Matej Avbelj, “Sovereignty and European Integration”
- Tina Orsolić, “The Relevance of the Concept of Sovereignty For the Future of the European Integration From a Comparative Constitutional Perspective”
- Gentiana Dedaj, “Protection of Domain Names – Cybersquatting, the Newest Trademark

Section 4: Legal Philosophy
- Jernej Letnar Černič, “The Struggle for Justice in the Life and Legal Philosophy of Professor Boris Furlan”
- Jordan Daci, “Justiciability of Economic, Social and Cultural Rights”
- Vojko Strahovnik, “Defeasility of Moral and Legal Norms”
- Rok Svetlič, “Kant’s Theory of Punishment and Sophocles’ Antigone

Here is a link to pictures and a book of abstracts form this event.



In 2012 the title of the conference was “Natural Law in Postmodern Times”. The conference took place in Bled between 9.- 10. November 2012.
The program consisted of the following talks:

Panel 1: Legal philosophy and argumentation 1
Seppo Sajama: Why must norms be general?
Vojko Strahovnik: What does the notion of prima facie duty have to do with defeasibility?
Giovanni Tuzet: How many a contrario arguments?
Marko Novak: How much moral cognitivism for a natural law theory?

Panel 2: Tracing the fundamentals to escape the enduring crises
Jen Hendry: Legal Pluralism and Normative Transfer
Maria Cahill: The Good of Sovereignty and the Sovereignty of Good
Matej Avbelj: Closing the epistemic gap – reinvigorating the federal thought

Panel 3: Tracing the fundamentals to escape the enduring crisis of the European Union
Janja Hojnik:  Building Le Courbusier's towers of the European economic structure
Katarina Vatovec: The respect for general principles on the use of restrictive measures – too little too late?
Saša Zagorc: European democracy revised: a deficit or a sufficit?

Luka Burazin: The concept of law as an artifact concept

Panel 4: International law, natural law and transnational justice
Jernej Letnar Černič: The long and winding road to human dignity
Filippo Fontanelli: The emergence of judicial tests as a new interstitial source of international law
Raluca Grosescu: Natural and positive law in transitional justice
Martin Luterán: The natural law and the postmodern principles of proportionality

Panel 5: Student Session: Universal and International law
Petja Mihelič: Universal fundamental norm of law
Mario Krešić: Sustainability of the principle omnis judex in re sua in international law
Robert Smrekar: The protection of fundamental rights as criteria for the implementation of security council resolutions – natural justice in international law

Panel 6: Legal philosophy and argumentation 2
Guenther Kreuzbauer: Substantial and circumstantial evidence in legal argumentation
Matjaž Potrč: The Value of Truth and the Truth of Value



Matej Avbelj
Faculty of Government and European Studies
CLOSING THE EPISTEMIC GAP – REINVIGORATING THE FEDERAL THOUGHT
Among the many crises the European Union has been suffering through in the last years, none has been more obstinate and, perhaps, damaging as the crisis of meaning. By this we understand an overall lack of capacity of the European integration to conceive of itself other than a sui-generis entity. This has been a great handicap, not only in a meta-theoretical sense, as even theorists of European integration have been unable to pin it down to some established widely accepted meaning, but also in legal and above all political-democratic sense. If the body politics is unable to pronounce clearly on its character, then it is impossible for it to cope with any challenges, let alone with such as faced by the integration at present. President’s Barrosso call for a federation of nation states is an important headway in this respect. It promises the bigger picture of the integration that might provide a comprehensive guidance for the future. But federalism itself is a rather controversial and above all historically distorted idea(l). This, therefore, begs a question whether federalism, and which among its many faces, can close the proverbial epistemic gap of the integration and provide that necessary theoretical, legal, political and democratic ethos that the integration has been missing.

Luka Burazin
University of Zagreb, Faculty of Law
THE CONCEPT OF LAW AS AN ARTIFACT CONCEPT
'Law' is often a) analysed in the concept monism fashion, b) by decomposing it into its essential or necessary features, and c) in line with its assumed hermeneutic nature that calls for an investigation into our law-talk with the aim of determining the concept of law. Assuming that the concept of law is determined by more than a mere understanding of those subject to law, consideration should be given to whether the concept of law is (exclusively) a hermeneutic concept or whether it would be more fruitful to explain law as a human artifact (based on the general theory of artifacts) and thus also the concept of law as an artifact concept (determined not only on the basis of how its addressees understand it but also on the basis of the intentions of the law-makers). Finally, if one were to accept that the concept of law is to be analysed as an artifact concept while taking into account the fact that the concept monism of today has failed to produce any adequate results, the possibility of accepting concept pluralism with respect to the concept of law (following the example of new tendencies in the philosophy of art) should be considered with the aim of creating an environment that opens up new lines of inquiry for legal theory and allows for a more fecund reappraisal of the existing conceptions of law.

Maria Cahill
University College Cork
THE GOOD OF SOVEREIGNTY AND THE SOVEREIGNTY OF GOOD
This paper will be given in two parts. The first part will examine what it is we need the concept of sovereignty for – what value it adds to our political and legal discourse, what end it conduces towards or, in Aristotle’s language what its telos is. This will be done through a survey of both historical and contemporary uses of sovereignty, weeding out, where necessary, those conceptions of sovereignty which have emptied it of any ‘good’ or telos. The second part of the paper will examine the conception of sovereignty as ‘sovereignty of the good’ and try to extrapolate at least to some extent what this conception means in concrete terms. The conclusion will try to draw these two strands – the good of sovereignty and the sovereignty of good – together in order to reach a conclusion that evaluates their mutual compatibility.

Filippo Fontanelli
University of Surrey
THE EMERGENCE OF JUDICIAL TESTS AS A NEW INTERSTITIAL SOURCE OF INTERNATIONAL LAW
In international jurisdictions path dependence is such that, even when there is no rule of stare decisis, precedents bear a central role in the case-law. Among other things, this implicates an increasing reliance on judicial tests formulated over time to rationalize and stabilize the application of open-textured provisions.
This process has led to the proliferation of tests created ad hoc and later developed into standards of review that are now writ in stone, such as the Salini test (to determine the existence of an investment), the Oil Platforms test (to assess prima facie the jurisdictional basis of a treaty-based claim), the multi-step necessity test in the WTO (to apply the general exceptions of GATT and GATS), the Mavrommatis test (to ascertain the existence of a legal dispute), the test of proportionality (routinely used by the Court of Justice of the European Union), just to name a few.
These tests have started to spill over onto other regimes than the one they were initially born in: since their rationale is to make general principles operational they are the perfect ready-made tool for other courts to pick when they are facing the typically difficult task of bringing principles and value-judgments in their reasoning.
The aim of this study is to observe this process and try to assess whether it challenges or develops the classical theory of the legal sources in international law.

Raluca Grosescu
Institute for the Investigation of Communist Crimes and the Memory of the Romanian Exile; Faculty of Political Science, University of Bucharest
NATURAL AND POSITIVE LAW IN TRANSITIONAL JUSTICE
The paper analyzes the relationship between natural and positive law in transitional justice. It shows how different post-dictatorial societies designed judicial accountability for human rights abuses, trying to reconcile law as written and law as right, procedural and substantive justice. The paper reflects upon transitional justice as mediating concept that seeks to mitigate the antinomies of positivism and natural law. Based on various examples from South Europe, Latin America or Eastern Europe, it illustrates how transitional justice, while grounded most of the time in positive law, tried to incorporate values of justice associated with natural law and thus mediating rule-of-law dilemma during periods of political transformation. The paper focuses also on the role of international law in transitional accountability. It shows that whereas international law preserves the ordinary understanding of the rule of law as settled law, it also enables transformation, allowing national justice to both diminish ex-post-facto challenges and limit impunity.

Jen Hendry
University of Leeds, School of Law
LEGAL PLURALISM AND NORMATIVE TRANSFER
While legal norms have always crossed borders, be these national, cultural or functional ones, recent legal and social changes and developments have increased the importance of studying the circumstances under which law and norms are transferred from one context or locus to another. Neither is it only issues of legal and normative transfer that global, supranational, and post-colonial developments in society have brought to the forefront of the debates among proponents of comparative legal studies, however, but also the similarly topical matter of legal pluralism, which has starred in debates concerning the importance of locality and context in understanding legal features and practices. These two concepts find themselves inextricably linked by their conceptual relevance to different legal orders and to issues of conflict, contestation and interaction in terms of law, society, culture and legal culture, but are rarely (if ever) conceptualized with relation to each other. This paper submits that framing normative transfer in terms of legal pluralism adds another dimension to each concept, and attempts to illustrate this with reference to the example of nation state-internal normative pluralism in post-colonial societies with indigenous communities.

Janja Hojnik
Assistant Professor of EU Law, University of Maribor
BUILDING LE COURBUSIER'S TOWERS OF THE EUROPEAN ECONOMIC STRUCTUREJanja Hojnik will discuss undemocratic tricks that are being used in the process of establishing the European fiscal union. Economicacquis communautaire is getting increasingly unclear, dominated by the credit agencies, while citizens are being excluded from the process of establishing the foundations of the future economic union. Europe-wide demonstrations show that a stable European economic union can no longer be established by completely ignoring democratic principles and by presenting the economic issues as too complicated for the citizens to have any say in this matter.

Mario Krešić
University of Zagreb, Faculty of Law; European Faculty of Law in Nova Gorica
SUSTAINABILITY OF THE PRINCIPLE OMNIS JUDEX IN RE SUA IN INTERNATIONAL LAW
The principle omnis judex in re sua is a result of the original Westphalian conception of international law. The developments in international relations have motivated theorists to expand this conception with new content. Nevertheless, the principle still remains formally valid. It expresses the freedom of state to interpret for itself what the law is. State cannot be compelled against its will to submit its disputes with other states for international adjudication. One of the consequences of this principle is that one state may legally claim the right to remain judge in a dispute in which the rights of another states are involved. This further means that political rights are not enforceable on demand in community which is seen, at least by certain theorists, as a rule of law community. The contradiction between this principle and fundamental principles of law made Lauterpacht and Kelsen question the principle`s sustainability in international law. This contradiction was used by respective authors as an argument to request the introduction of compulsory adjudication in international law. However, it seems that social practice in contemporary international community does not justify their request. Nevertheless, their initial argument, based on the principles of law, could be strengthened by the argument based on political responsibilities in international community, similar to argumentation Dworkin used to justify humanitarian intervention.

Guenther Kreuzbauer
University of Salzburg
SUBSTANTIAL AND CIRCUMSTANTIAL EVIDENCE IN LEGAL ARGUMENTATION
Anybody who has ever watched a Miss Marple movie or read a detective story knows that there is a difference between what we may call substantial evidence and circumstantial evidence. But theory of argumentation also knows the distinction between deduction, induction and abduction, and although abduction and circumstantial evidence seem to be equivalent at first glance, the exact relation between those two distinctions is not sufficiently understood by science.
For theory of legal argumentation this would be relevant, because more knowledge about this could provide a deeper understanding of rationality: Like virtually any human endeavor also argumentation is restricted by scarcity or resources. In this light there are cases where it is more rational to go for substantial evidence and there are cases where circumstantial evidence is optimally rational. A deeper understanding of these questions means a deeper understanding of rationality in general and in the case of legal argumentation.
In the presentation the author will talk about these questions and how this sheds light to a better understanding of legal rationality.

Jernej Letnar Černič
Faculty of Government and European Studies
THE LONG AND WINDING ROAD TO HUMAN DIGNITY
Respect for the human dignity of individuals is one of the cornerstones of every functioning democratic society. This article critically examines the landmark decision U-I-109/10 of the Slovenian Constitutional Court from 26 September 2011 on Article 2 of the Ordinance on Determining and Changing the Names and Course of the Roads and Streets in the Territory of Ljubljana Municipality (Tito street decision). It analyzes the decision from the perspective of human rights law and transitional justice, trying to draw out lessons concerning the understanding of human dignity and current ideological divisions in Slovenia. Equipped with this knowledge, this article argues that there exist strong normative and moral grounds for adopting a wide definition of human dignity, which prohibits the symbolic immortalization of the totalitarian regimes.

Martin Luterán
Kolégium Antona Neuwirtha
THE NATURAL LAW AND THE POSTMODERN PRINCIPLES OF PROPORTIONALITY
The second half of the twentieth century has witnessed a worldwide growth in the use and importance of a constitutional principle of proportionality. More and more international and constitutional courts use proportionality as a tool in making their judgments about the limits of human rights. Similarly, more academics engage in the debate about the precise contours of this principle, its justification, and usefullness. Despite its arguable origins in the natural law tradition, the contemporary principle of proportionality differs significantly from its natural law predecessor. Natural law proportionality is being replaced by „postmodern“ proportionality.This article will argue that the changes in the understanding of proportionality reflect an on-going paradigmatic shift in the understanding of human rights – a shift from a rule-based system inspired by natural law thinking to a more principle-based system infused by consequentialism. After showing the differences between natural law and „postmodern“ principles of proportionality, it will be argued that the latter principle is confused, useless and potentially harmful. It systematically leads courts to one of the two extremes: 1) not giving sufficient protection to essential human rights, or 2) restraining states from acting for the authentic common good. The human rights law would be better off without this principle.

Petja Mihelič
European Faculty of Law in Nova Gorica
UNIVERSAL FUNDAMENTAL NORM OF LAW
Research thesis entitled “Universal fundamental norm of law” will work out a new metaphysical aspect of legal science. The advantage of this theory compared to theories of classical or modern natural law is in it’s physical appearance, scriptural and historical evidence. Universal fundamental norm of law is not something that we should only be working out using our reason and natural phenomena as it is the case for the theory of Natural law, nor is it something that that we should be creating in our mind and then rationalizing it to pass formal legal standards, as it is the case with Positivistic theories. Rather is the Universal fundamental norm of law unity of Natural and Positivistic law theories. St. Augustine says the following: “…but lest men should complain that something had been wanting for them, there hath been written also in tables that which in their hearts they read not. For it was not that they had it not written, but read it they would not. There hath been set before their eyes that which in their conscience to see they would be compelled” (St. Augustine: Exposition on the Book of Psalms, Psalm LVIII, 1). While Natural law was always accessible to man, but rationalist mindset that demands empirical proofs for all things (“...by putting God to the test we make fools of ourselves…” Wisdom 1, 3), wasn’t prepared to acknowledge it and make positive laws according to this already established model. Natural lawyers had quite an arduous task in trying to convince them on the existence of such a law, because if there is no objective Lawgiver there cannot be objective laws. Rationalists may be compared to apostle St. Thomas who said: “First, I must see the nail scars in his hands and touch them with my finger. I must put my hand where the spear went into his side. I won't believe unless I do this!” (Holy Bible, John 20, 25). So first the Creator of natural laws codified it’s fundamental norms by placing it on the 10 Commandments Tablets. Natural law was thus made known to Jews and Gentiles but “made nothing perfect” according to Scriptures (Holy Bible, Hebrews 7, 19). But nevertheless it was a great step forward by placing fundamental legal norms in clear positive form. From the beginning of the creation Eternal law was placed in nature of things and nature of man, but it was unseen, then it was written on the Tablets and finally it became flesh with the incarnation of the Son of God and thus brought to completion – Natural law was made perfect (Holy Bible, Romans 10, 4). It became accessible for man’s ratio and his empirical methods: and Christ said to Thomas, “Put your finger here and look at my hands! Put your hand into my side…” (Holy Bible, John 20, 27). Christ brings objective final answers to key questions of positive law. He is universal fundamental norm of law and only in Him can key legal questions be answered in complete truthfulness and righteousness.

Marko Novak
European Faculty of Law in Nova Gorica
HOW MUCH MORAL COGNITIVISM FOR A NATURAL LAW THEORY?
Moral cognitivism (or objectivism, sometimes even realism) claims that there are moral facts that can, in principle, be known since they are independent of believes or attitudes. Quite the contrary, moral non-cognitivism (anti-objectivism or irrealism) denies the upper assertion that moral facts are independent of the will of divine or of human law-givers. The two philosophical positions necessarily determine legal philosophers’ option for either supporting the thesis of connection between law and morality, or denying it (the so-called separation thesis). Extreme moral cognitivism would most probably lead to a position on that issue by an exclusive legal non-positivist (or natural lawyer?), while extreme moral non-cognitivism would be advocacy by an exclusive legal positivist. It is much more difficult to deal with the difference between moral cognitivism and moral non-cognitivism when it concerns the inclusive versions of either legal positivism or legal non-positivism. In such a case a concept of moderate moral cognitivism seems necessary to be developed to properly address and explain, e.g., the problem of the (moral) difference between a malum in se and a malum prohibitum that has well been established in the legal tradition of criminal substantive law. Moreover, since today the designation of natural law theory is mostly “reserved” for theoretical attempts by exclusive legal non-positivists, there appears the question of how much moral cognitivism is needed to constitute such a theory. Is it ever possible for an inclusive legal non-positivist theory based on moderate moral cognitivism to count as such?

Matjaž Potrč
University of Ljubljana
THE VALUE OF TRUTH AND THE TRUTH OF VALUE
The value of truth is known as truth-value. Relatedness between two-valued logics and the construal of truth as direct correspondence is pointed out. Some terms, close to the social, deontic and thus to the value related matters present problem for the ontological support of truth as direct correspondence construal. One may stick to this construal, adding truth values and extend their ontological support. Another solution is to accept the construal of truth as indirect correspondence, along with the denial that posited entities exist in the ultimate ontology. This may be seen as the act of adding value to an account of truth. Truth conditions are measured by the nature of their deontic commitments. One can distinguish between truth conditions that happen via direct correspondence and between these that have indirect correspondence as their support. In this last case the further distinction is between indirect correspondence without deontic commitments and between indirect correspondence via constitutive deontic commitments. Finally, there are cases with no truth conditions, where valuative moral judgment may serve as a guide.

Seppo Sajama
Department of Law
University of Eastern Finland, Joensuu
WHY MUST NORMS BE GENERAL?
It is plain that they must, and that is what Aristotle says, too. Therefore, it is not surprising that very few people have ever posed the question, at least before the end of the 20th century, within the law and economics movement. The only exception seems to be Thomas Aquinas who argues (in Summa Theologiae II-I, 94, 4) that the more a norm goes into details, the more problems will arise. ("[Q]uanto magis ad propria descenditur, tanto magis invenitur defectus.") This makes sense, because every added detail makes the norm more complex, more difficult to apply and, therefore, less efficient. It will be examined whether Aquinas really invented the idea that the law of diminishing returns works in legislation.

Robert Smrekar
European Faculty of Law in Nova Gorica
THE PROTECTION OF FUNDAMENTAL RIGHTS AS CRITERIA FOR THE IMPLEMENTATION OF SECURITY COUNCIL RESOLUTIONS – NATURAL JUSTICE IN INTERNATIONAL LAW
The world of international law is a world of plural legal sub-systems which exist in mutual heterarchical relationships. The jurisdiction of each of these sub-system is defined by the materia they regulate and it is therefore quite possible for a subject of international law to be, in a given time, under the jurisdicton of various legal systems which require different and even opposite behaviour. As a general rule, UN law retains a hierarchical supreme position over it's jurisdiction and this recognition is underpinned by UN sui-generis character combined with its main task: the protection of world peace and human rights. While introducing targeted sanctions a crucial question has arisen, namely: should national and supra-national legal systems unconditionally implement UN Security Council resolutions even when they don't comply with constitutional human rights protection standards? This conflict is manifest in the clear and demanding dilemma; should international obligations prevail over the protection of human rights, should security prevail over freedom? On the European continent the issue opened a broad discussion about the hierarchical relation between UN and EU law. Analysing some of the most notorious judgements of European courts we could advocate that there exist a set of higher norms, which incorporate a natural law essence. In a Radbruch sense, where UN statutory law is incompatible with the requirements of justice »to an intolerable degree«, such law must be disregarded.

Vojko Strahovnik
University of Ljubljana, Science and Research Centre University of Primorska and Faculty for Government and European Studies, Kranj
WHAT DOES THE NOTION OF PRIMA FACIE DUTY HAVE TO DO WITH DEFEASIBILITY?
In many debates on legal defeasibility, especially those framed in terms of defeasibility of legal norms one finds several references that try to put forward an analogy between defeasible legal norms and defeasible moral norms. One on the most frequently authors referred to in this regards is W. D. Ross that has developed the notion of prima facie duties. In the paper I investigate whether such analogies are plausible and what is really defeasible in prima facie duties. I argue that in one of the senses of defeasibility – the one that is closely connected with the notion of an exception –, prima facie duties (at least in the sense that Ross understands them) are clearly not defeasible. Prima facie duties are best understood as basic moral reasons. What generates defeasibility within this model is moral pluralism.

Giovanni Tuzet
Università Bocconi
HOW MANY A CONTRARIO ARGUMENTS?
Legal argumentation theory distinguishes two versions of the A Contrario Argument (ACA): a strong and a weak one. I claim there are actually three of them: a strong, a weak and a minimal one.
The strong version is used to claim that a case which is not explicitly regulated by a legal norm has to be regulated in the opposite way. In this sense the ACA is taken to imply that the case is regulated by the law: there is no gap in the law in relation to that case. According to the weak version, instead, there are no legal grounds for extending to the non regulated case the discipline of the norm; so the case has to be regulated in the opposite way. In this sense the ACA is used to claim that there is a gap in the law that cannot be filled. Finally, in the minimal version the ACA is used to claim that there is a gap in the law because the norm does not regulate the case.
Scholars usually agree on the strong version but have different views on the others. I will give examples of them and discuss their status and justification conditions.

Katarina Vatovec
Faculty of Government and European Studies
THE RESPECT FOR GENERAL PRINCIPLES ON THE USE OF RESTRICTIVE MEASURES – TOO LITTLE TOO LATE?
It is widely acknowledged that periods of crisis have a negative impact on the respect and protection of fundamental rights. For example the post-9/11 era brought a significant degradation of fundamental rights. Similarly, the current economic crisis seemingly affects fundamental rights in various ways. The discussion will focus on restrictive measures as tools the European Union Member States use in order to »uphold respect for human rights, democracy, rule of law and good governance« (Council's Note, 10198/1/04, REV 1, PESC 450). It will be argued that restrictive measures and their use are governed by some general principles (e. g. the rule of law), whose respect is in times of crisis seriously challenged.

Saša Zagorc
University of Ljubljana, Faculty of Law
EUROPEAN DEMOCRACY REVISED: A DEFICIT OR A SUFFICIT?
It was not until Moravscik shook the doctrinal univocity of the last two decades that European Union does not rest firmly on the solid layer of democratic foundations, with his empirical analysis and de-idealising of a perfect democracy. The last and probably the most prominent stakeholder of the 'democratic deficit' doctrine to do so, the German Federal Constitutional Court, issued the Gauweiler Urteil, in which it re(in)stated the lack of democratic legitimisation of the European Union as long as no uniform European people could express its will equally and in a politically effective manner. Various perspectives and backgrounds of interlocutors prevent a coherent debate and obviously trigger different conclusions. In order to avoid not seeing the wood for the trees, one should dig deeper into the core of a regulated society: What makes it a genuinely democratic entity? And finally, la question contemporaine, does the European Central Bank need more democratic oversight and formal control over its action?



2013 Conference


Friday, September 20th 2013

14:30 Opening of the conference (organizers) 
14:45-15:30 Marko Novak: A Four-Dimensional (Integral) Theory of Law
15:30-16:15 Vojko Strahovnik: Legal Positivism and Defeasibility of Legal Norms

coffee break

16:45-17:30 Matej Avbelj: Postmodernity and the Concept of Law
17:30-18:15 Dimitry Kochenov: Europe's Justice Deficit

18:15-18:45 Student session
Petja Mihelič: Roe vs. Wade – 40 years of absolute authority
Luka Martin Tomažič: Dialectic as an Inherent Part of Law

conference dinner


Saturday, September 21st 2013

9:00-9:45 Matjaž Potrč: Rational Disagreement
9:45-10:30 Rok Svetlič: TBA

coffee break

11:00-11:45 Tina Oršolić Dalessio: Subsidiarity in the European Union: Lessons from the Past, Problems of the Present and Solutions for the Future
11:45-12:30 Aleš Maver: TBA

Closing remarks

Abstracts
Matej Avbelj
Faculty of Government and European Studies

Postmodernity and the Concept of Law
This paper will address a philosophical question whether the emergence of transnational law and the anchoring of the legally pluralist paradigm signal the advent of the post-modernity in the field of law? What would that mean and what consequences would it have for our conventional concept of law?

Dimitry Kochenov
University of Groningen

Europe's Justice Deficit
TBA

Marko Novak

A Four-Dimensional (Integral) Theory of Law
The three-dimensional theory of law, a predecessor to the four-dimensional theory of law, has been quite well known in the global academic “market” of general theories of law. To recall, its three-dimensionality sees the essence of law in intertwining legal norms, legal values, and legal relations, whereas its integrality refers to the fact that it’s impossible to understand only one dimension, of the above-mentioned, without simultaneously considering the other two dimensions. In terms of legal epistemology it comprises the mutual participation of three scientific disciplines: general theory of law, legal philosophy, and legal sociology.

Such three-dimensional theory of law can be explained by Jungian psychological typology or, more narrowly, by its four cognitive functions: thinking and feeling (the evaluative functions), as well as intuition and sensation (the perceptive functions). In the framework of such, thinking is reflected in legal norms, intuition in legal values, and sensation in legal interests or legal relations. In the co-existence of these three dimensions in a certain legal situation one such dimension predominates, is superior, and others are inferior.

A four-dimensional (integral) theory of law follows the three-dimensional theory of law as explained through the Jungian psychological typology. The fourth element or dimension that it adds to the three-dimensional theory of law refers to the cognitive function of feeling. In the framework of law, feeling is widely used in the field of ADR, as an alternative to the classical (logical or thinking-oriented) decision-making in law. According to this theory law can be defined as special norms resulted from disputable social interests or relations as well as social values (the perceptive part of the definition) that are applied in a classical or alternative manner (the evaluative part of the definition).

Tina Oršolić Dalessio
University of Zagreb, Faculty of Law

Subsidiarity in the European Union: Lessons from the Past, Problems of the Present and Solutions for the Future
This paper explores the origins of the principle of subsidiarity and its current understanding in the context of European integration. Following the analysis of the evolution of this concept in Europe, the paper points out that there are certain lessons to be learned from the past. It argues in favor of reintroducing the original understanding of subsidiarity as a concept rooted in the idea of protection of human dignity and inherently composed of two sides, positive and negative one – the conception that has been either forgotten or purposefully ignored in the European integration context. It is suggested that such an understanding is not only useful as a means of ensuring more efficient and legitimate decision-making processes in the EU, but also needed in order to ensure full respect of this fundamental principle of EU law.

Matjaž Potrč
University of Ljubljana, Faculty of Arts

Rational Disagreement
Conciliation strategy is the usual take on the phenomenon of rational disagreement. One’s adversary in dispute at hand is treated as global and also as a local peer. Rationality then requires abandoning of one’s belief. The opposite strategy, that of nonconciliation, is defended. It argues that in the rational disagreement one treats one’s adversary as global peer and as local inferior. The quantitative approach to belief is substituted by the qualitative strength of belief. The support of belief succeeds according to one’s best take on the available evidence, following one’s sensibility that leads to the objective evidential support. Ethics of belief is thereby complied with, supporting one’s subjective insight from the rich holistic cognitive morphological background.

Vojko Strahovnik
Faculty of Government and European Studies, Kranj
Faculty of Theology at University of Ljubljana

Legal Positivism and Defeasibility of Legal Norms
The paper discusses the relationship between defeasibility of legal norms and legal positivism. It begins with introduction of the concept of defeasibility. Usually by defeasibility in the legal domain one aims to stress either the defeasible nature of law (legal norms) itself as admitting of exceptions that cannot be fully spelled out and specified in advance (norm based account of legal defeasibility) or defeasibility in legal reasoning as a consequence of interpretation of legal provisions or concepts (interpretation based account of legal defeasibility). Several different models or interpretations of defeasibility are discussed in order to get a better grip on the issue.  What they have in common is that they presuppose a value-laden background of defeasible norms that can lead towards making an exception to the norm. This raises an interesting issue on whether such defeasibility of legal norm is compatible with legal positivism. After presenting several distinct understandings of legal positivism the paper argues that the existence of such presupposed values and defeasibility of legal norms is not compatible with strong and exclusive legal positivism.

Rok Svetlič
University of Primorska, Science and Research Centre

Biopolitics and the erosion of the Law
The M. Foucault’s concept of biopolitics is one of them most widespread instruments for interpretation of contemporary state. In this paper will be shown that this concept is only the strategy, how to confront the incapability to accept the Being world. The core of biopolitics is the weak spirit witch demands from the consciousness the rejection of the Being as truth. This is carried out by hypostasing the second world, with its own law, that is hidden – the Foucault’s philosophy wants to be its revelation – and regulate the course of present one. In fact the concept of biopolitics is only the surface of the being-understanding witch leads into empty tautological explanations of the political phenomena. This will be shown on the Foucault’s case of penalization. 

Student session

Petja Mihelič
European Faculty of Law in Nova Gorica

Roe vs. Wade – 40 years of Absolute Authority
Year 2013 marks the 40th anniversary of US Supreme Court decision in the case Roe vs. Wade from 1973. This precedential ruling legalized abortion in USA, which since then took about 55 million lives of Americans. Jane Roe, a citizen Texas, sought to have an abortion, whereas the federal state of Texas, at the time, only was allowing abortion to be performed if the life of the mother was endangered. Jane Roe decided to seek her self-proclaimed justice by legal means. The Supreme Court finally ruled 7 to 1 that right to privacy, in broad sense, also includes right of a women to have an abortion. Although there is no explicit right to privacy to be found anywhere in the constitution, nonetheless, the Court found this right to be implicit in First, Fourth, Fifth, Ninth and Fourteenth amendment.
US Constitution ->  Fourteenth Amendment ->  Right to due process ->  Clause to privacy    Woman's right to have an abortion.
The Supreme Court balanced right of a woman to have an abortion against the state's two legitimate interests in regulating abortions: protecting prenatal life and protecting women's health. The Court held that in the first trimester of pregnancy the state has no right to interfere with a woman`s right to have an abortion; in the second trimester the State can regulate it by reasonably balancing it with maternal health; in the third trimester the State can prohibit abortion, due to the fact that the State interests are becoming stronger over the course of a pregnancy, as the fetus becomes viable outside the womb. State`s right to prohibit abortion is excluded in cases "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
Natural law, as oppose to utilitarian world view (vague notion of state interest), prohibits doing evil actions so that something good could come out of them (killing one person to protect the life of another). When we are balancing right to life of an unborn human individual and right of privacy there are some important point to consider. Both rights are natural and should be protected by law. However, in order to uphold somebodies right to privacy, we cannot infringe upon somebody else`s right to life. Note, that a violation of a right to privacy, constitutes an unlawful act by virtue of statute (malum prohibitum), while violation of the right to life constitutes an act that is intrinsically evil (malum in se). Not only is a grave violation of natural law to perform an abortion, but also to conspire or in any way promote it.
Universal declaration of human rights states in its Preamble that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”, and that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”. “All members of the human family” includes humans at all stages of their life. A conceived human, though unborn, is human person with absolute right to life, which cannot be outweighed by prima facie right to privacy. To say it otherwise would be an outrage not only to human conscience, but first and foremost to human reason.


Luka Martin Tomažič
European Faculty of Law in Nova Gorica

Dialectic as an Inherent Part of Law
Author's article is centered around the problem of researching dialectical aspects of law, especially in it's practical application. Until recently, the theory of legal argumentation placed emphasis on researching the formally-logical and the rhetorical aspects of law. Author argues that dialectic is an inherent part of law as such and that research of dialectics can be the missing link, which puts rhetorical and logical elements of law in the appropriate context in the framework of studying legal discourse.

2014 Conference

Program

November 21, 2014

14:00 Welcome and Introduction  (Matej Avbelj)
14:15 Panel No.1:    Conceptualizing Transnational Law (Chair: Vojko Strahovnik)
Antoine Duval: Unpacking Three Discourses of Transnational Law
Hanna Maria Kreuzbauer: Is Transnational Law Really Law
Matej Avbelj: Framing the World of Transnational Law

16:00 Coffee Break

16:15 Panel No.2: Legal Theory in the Era of Transnational Law (Chair: Matej Avbelj)
David Roth-Isigkeit: Conflicting Legal Orders and the Limits of Legal Argument
Marko Novak: The Argument of Analogy as a Global Legal Argument
Martin Tomažič: Ontological Turn and the Influence of Undefined or Multi-meaning Notions on the Modern Understanding of International Law

19:00 Conference Dinner (Hotel Jelovica)


November 22, 2014

9:00 Panel No. 3: Philosophical and Ethical Challenges of Transnational Law (Chair: Jernej Letnar Černič)                     
Clare Frances Moran, A Theory of Justice: John Rawls and International Human Rights Law
Matjaž Potrč: Two Levels of Moral Engagement
Seppo SajamaEuropean Rules of Contract Interpretation?

10:45 Coffee-Break

11:00 Panel No.4: Business, Human Rights and Transnational Law in Comparative Perspective (Chair: Marko Novak)          
Vojko Strahovnik, Transnational Law, Global Justice, and Agents of Justice: An Ethical Case for Responsibility of Transnational Corporations
Jerneja PencaThe curious case of legal transplanting: From 'Green' to 'Clean' Development Mechanism
Jernej Letnar Černič, Business, Sustainable Development and Human Rights in China
Robert Walters, Transnational Private International & Human Right Law – The Slovenian and Australian Comparison.


12:30               End of Conference

Abstracts

________________________________________
Matej Avbelj
Graduate School of Government and European Studies, Kranj, Slovenia

FRAMING THE WORLD OF TRANSNATIONAL LAW 
Scholars have only begun grasping the complexity of the legal world beyond the state – the world which is emerging through the coordinated and uncoordinated practices of subnational, national and transnational actors, which are private, hybrid and public. There are so many crosscutting legal dimensions of transnational law, which are both a result of as well as a tool for the mobility of the economic factors, but primarily of capital, which as a means of economic power act as a foundation and source of the political power.
The challenge this development has posed resides both on a practical and theoretical level. The practices have resulted in an increasingly complex, multi-layered, multidimensional, crosscutting, centrifugal, autonomy-fostering, increasingly particularistic, but at the same time closely mutually interdependent legal landscape (or even landscapes). By default, in practice, the world of transnational law is marked by pervasive plurality.
This paper, however, takes up a theoretical challenge posed by the question whether it is possible to subsume the existing and still growing legal plurality under a single normative theoretical framework, so that the latter would be able to provide a conceptual apparatus (the language) for all of the emerging phenomena; as well as a network of understandings that would be able to explain the internal and external dynamics of the transnational legal development. If so, what kind of framework would that be?
________________________________________
Antoine Duval 
ASSER Institute, Den Haag; European University Institute, Florence

UNPACKING THREE DISCOURSES OF TRANSNATIONAL LAW
Transnational law is certainly à la mode, it is used in many different contexts to describe a plurality of phenomena connected to law in a transnational(izing) social environment. Yet, this increasingly common use is hiding a fragmented, controversial and disputed understanding of the meaning of transnational law. In this paper, we aim at mapping three different legal discourses making use of the notion of transnational law. These discourses are unfolding in different academic circles and are based on different fundamental premises. The paper will re-construct their doctrinal emergence, as well as their main tenets and focus on their divergences and convergences.
The first discourse of transnational law under scrutiny would be the one found prominently in American scholarship. Its doctrinal roots in American legal realism, from the work of Jessup onwards, underlie its pragmatic nature. But, transnational law is also, and this is mainly an offspring of European continental scholarship, used to characterize transnational legal orders. Those are understood as legal orders arising autonomously from the development of transnational (private) communities. This strand of the literature draws back to the work (amongst many others) of Santi Romano and is a form of transposition of a classical positivistic understanding of the law to the transnational level. Finally, transnational law can also come, in a more modern fashion, as a new legal methodology tackling the legal challenges of a globalizing and pluralizing legal environment. This paper is a descriptive attempt; it does not aim at supporting any of the studied conceptions of transnational law, but at providing an insight into their intellectual histories and doctrinal premises.
________________________________________

Hanna Maria Kreuzbauer 
University of Salzburg

IS TRANSNATIONAL LAW REALLY LAW?
Transnational law is usually seen as any law transcending national borders. Since, in all postmodern societies we observe governments to become weaker and non governmental actors to become stronger, the end of the Westphalian system is not unthinkable any more. Therefore, the relevance of non-governmental "law", like transnational law, increases dramatically. The big practical question is finding the right balance between national, traditional international and transnational law. The big theoretical question is: Is transnational law really law? 
This paper tackles the second question:
(1) As a first step the author discusses the essential features of what we call transnational law. 
(2) Then the obvious prerequisite for a philosophical answer, a solid, functional and resilient concept of law, will be addressed. It is widely accepted that law is a normative system, which makes for our undisputed genus proximus. But what are the differentia specifica? The paper presents the most important candidates, as there are: the legislator, the way of norm setting, norm justification, norm sanctioning or norm application, the degree of concreteness, the kind of deontic modalities etc. On this basis, the author will propose her own explication of the concept of law.
(3) Finally, the paper tries to answer the question to which extent transnational law falls within this concept, and consequently should be called law or not. ________________________________________

Jernej Letnar Černič
Graduate School of Government and European Studies, Kranj, Slovenia

BUSINESS, SUSTAINABLE DEVELOPMENT AND HUMAN RIGHTS IN CHINA

The global business environment has changed rapidly in past decades. Some corporations have faced sharp declines in revenues, whereas others, particularly from Asian and South American countries have taken over position once possessed by corporations from France, Germany, Japan, UK and US.  Chinese and Indian corporations have been particularly successful in climbing the ladder of the world's most successful corporations by revenue or profit. For instance, the 2013 Fortune Global 500 list includes 89 corporations from China, 62 from Japan, 132 from the United States, 8 from India and Brazil.  At the same, the discourse on business, sustainable development and human rights has not advanced as quickly as fragmentations and developments in business environment. This article firstly outlines the factual background of the business, sustainable development and human rights in China. Then it goes to analyse critically normative framework for business, sustainable development and human rights in China and its application in practice, trying to draw out lessons concerning the understanding of current state of affairs. Equipped with this knowledge, this article goes on to identify best practice and defiencies of the Chinese normative framework and practice. Chinese corporations are becoming increasingly aware of importance of sustainable development and human rights for avoiding legal, financial and other risks and assuming a more competitive position in the marketplace. Complying with corporate social responsibility and sustainable development may open them access to new markets, which would remain otherwise closed. Equipped with this knowledge, this article finds that Chinese legal system fairs reasonable well on business and sustainable development when compared to those of other developed economies and even democracies. What seems to be missing is its diligent and strict application in daily business practice.  Overall, main objective of this article is to examine whether often-expressed statement “China does not care for business, sustainable development and human rights” holds any water. 

________________________________________

Clare Frances Moran
Abertay University / University of Glasgow

A THEORY OF JUSTICE: JOHN RAWLS AND INTERNATIONAL HUMAN RIGHTS LAW
John Rawls’ seminal work, A theory of justice, examines the idea of justice as fairness, extolling that all individuals are free, equal and entitled to the same basic human rights. By extension, all States are expected to adhere to basic human rights norms and to honour the treaty undertakings they have made, particularly during times of armed conflict. However, this presupposes the existence of a State from which rights are afforded and may be accessed. As a result, this theory lacks traction where statelessness persists or where a new State may be emerging. In the context of the Middle East at present, it is clear to see that international human rights law may appear to have no jurisdiction where an emerging power is exerting control to the detriment of the civilian population. This is particularly true during times of armed conflict.
This paper will explore the extent to which a theory of justice as fairness can apply without the mantle of the State. In particular, it will assess the necessity of Statehood for human rights protections and accordingly, for justice.
________________________________________

Marko Novak
European Faculty of Law in Nova Gorica

THE ARGUMENT OF ANALOGY AS A GLOBAL LEGAL ARGUMENT

Analogy, not deduction, seems to be the most important type of legal inference in the context of legal decision-making. It precedes deduction and represents the crucial part of meeting facts and legal norms that is necessary for any justifiable legal decision. If deduction is a formal and external aspect of legal decisions, analogy is their material and internal aspect.
This overall importance of analogy for law is the reason why, such as deduction, it is present globally, in every legal system. However, its appearance and dimension vary with different legal families and the national legal systems comprising them, which is why we deal with statutory analogy in civil law, precedential analogy in common law, and Kijas in Sharia law being the most typical examples of analogies made in the global legal world. 
________________________________________

Jerneja Penca
European University Institute / Graduate School of Government and European Studies

The curious case of legal transplanting: From 'Green' to 'Clean' Development Mechanism
This paper considers the case of the Green Development Mechanism as a governance tool for biodiversity conservation from the point of view of a ‘legal transplant’, drawing on the Clean Development Mechanism from the climate regime. The case serves to draw wider lessons for theorizing transnational law, in particular as it relates to (state-centered) international law. The focus is placed on four aspects of the case. First, the process of transferring a legal idea from one substantive field of international law to the other brings attention to the power of metaphors in forging legal solutions, simultaneously uniting and dividing. Second, the institutional arrangement of the studied transnational initiative reveals how close interactions between various actors complicate normative claims about legitimacy. It also highlights distinct ‘pockets’ of legal cultures which conflict with the presumption of universality in international law. Third, the legitimating strategy of the transnational initiative is analysed from the point of view of the role of state approval and claims of implementation of international norms (even when these are deceptive). Fourth, the legal form of a transnational standard-setting initiative is examined vis-à-vis the intentions behind the treaty provisions, which the transnational initiative both distinguishes from and appeals to. The paper offers some conclusions about the compatibility of transnational initiatives with traditional international law in particular with respect to the construction of legitimacy and its normative justification.
________________________________________

Matjaž Potrč 
University of Ljubljana

TWO LEVELS OF MORAL ENGAGEMENT
Existence of legal realm and its application to the rich entanglements of empirical world offer an interesting dialectics. A similar tension is there for moral theory. Some two levels theoretical choices introduce the exercise. Psychological Gestalt theory distinguishes building blocks and sensory data that give rise to a new quality. Deliberative System 2 is distinguished from the response based System 1. Moral intuitionists take it that all pertinent work in the formation of moral judgment is exercised by emotional gut level reactions, whereas deliberative explanation is accorded the role of confabulation. Hare distinguishes the level of everyday immediate moral engagements from deliberation based judgments. Moral judgments are commands which happen in a dynamical interactive environment. Hooker’s defense of act consequentialism recognizes an ideal area of moral law or value which is in tension with everyday moral engagements. The following approach to moral realm is presented: On the upper level of one’s moral engagement, one finds an ideal monistic value or reason. This one illuminates the lower area of empirical moral engagement, but only as being aimed at from below, presenting an upper level positioned ideal point of reference as thus observed. Lower level of moral engagement is a holistic and dynamical moral landscape, upon which plurality of moral forces appears, striving towards the upper level. Many times these are presented as prima facie duties or plurality of principles. But lower level is psychologically based, which accounts for its inbuilt shortcomings
in effectivity, and as well for phenomenological constitution of moral judgment that it produces. Phenomenological reduction puts into parentheses psychologism of the lower level, leading to the relevant ideal point of reference. Illumination from the upper level succeeds through phenomenology proper to the forces at the moral landscape. Consequentialist monism tends to be portrayed as a third person point of view approach, whereas deontology as the one adopting first person point of view. Prospects of first person point of view monism are evaluated. 
________________________________________

David Roth-Isigkeit
Normative Orders – Cluster of Excellence at Goethe University Frankfurt/Main

CONFLICTING LEGAL ORDERS AND THE LIMITS OF LEGAL ARGUMENT
The quests of the territorial nature of international law and jurisdiction are crucially intertwined. Wherever a legal decision is made, it belongs to a specific legal space that is first and foremost defined by the territorial location of the decision-maker. With the spread of norms that transcend territorial contexts, the location of a decision in one single legal order becomes more and more complicated. Decisions cannot be based anymore on the simple application of a valid norm, rather the determination of the applicable norm itself is the first problem. What if constitutional law says the one thing and human rights the other? Two valid legal provisions compete for preferential application on a specific case with no solution arising from the law on how to solve this conflict.
One important example for such a constellation is one of the most prominent jurisdictional conflicts in the last years: the debate about targeted sanctions in the global war against terrorism and human rights claims of the suspected terrorists. The Security Council as the principal organ of the United Nations to safeguard peace and security imposed asset freezes and travel bans on persons that where suspected to be supporting global terrorism. As there were no remedies available for the persons on the so-called terror list, European Courts challenged the implementation of the sanctions, holding that (human) due process rights were not respected. A line between collective security and human rights as two concurring normative positions had to be found. 
The United Nations and the European Union are two different legal orders with different territorial prerequisites. The application of United Nations is quasi-universal and European Union law restrained to the territory of the Union.  Territorially bound law has a very limited capacity to deal with these constellations of overlap.  One legal order stipulates a solution to a specific case, another legal order takes another path. The traditional solution to these constellations is that both legal orders incorporate specific rules of conflict that determine which law applies in which situation. In the context of the emergence of a multitude of legal orders and their interconnection in the course of globalization, it has become clear that attempts to resolve the conflict within particular orders are complicated. The resolution of norm conflict is commonly done with the help of conflict rules, legal provisions that define the relationship of one order to another.  Since there is fundamental disagreement, which legal order should prevail in which case, this ends up most of the time in a strategic exercise. Every legal order defines its own conflict rules that are not harmonized. In this multitude of conflict rules, the outcome of specific cases depends on the decision which conflict rule is applicable. But how can we decide that question?
In these cases an actor that is territorially bound to one legal order, in most of the cases a court, has the choice: it can take either a self-referential or an extra-referential decision. Either the court decides on the basis of the law of its own legal order and produces a conflict with the “foreign” legal order that views the case under its own jurisdiction. Or, the court decides with reference to the “foreign” legal order and has a conflict with its own legitimacy in its original legal system. The outcome of both solutions is not satisfying.
The (philosophical) question I raise in this paper is what can be done, when the technical character of law finds its limits because there is a multitude of applicable and valid rules across territorially-structured legal systems. In this situation the function of law as stabilizer of actor’s expectations ceases to exist.  The decision between the content of two legal orders, between two different ways on how to rule on a specific case is – in principle – a comparison between two normative positions. It would seem that there is no legal-normative answer to that conflict, but only a political-pragmatic one. In terms of legal certainty and, ultimately, ideas of justice this seems highly problematic.
What has to be done, that is my suggestion, to transcend the territorial context without completely giving up the principle that a decision is always located within instead of above a territorial context. In this article, drawing on discourse theory as developed by Jürgen Habermas, I aim to prove that there exist legal relations governing these conflicts in between territorially bound orders that can be used to transcend the territorial context of a legal decision. These legal relations are reflected in particular procedural requirements of dealing that require a commitment to reflexivity and tolerance. In my contribution, I explore the nature and prerequisites of these procedural requirements and suggest ways to deal with tensions arising from the territorially bound nature of legal decisions.
________________________________________

Seppo Sajama
Department of Law, University of Eastern Finland, Joensuu

EUROPEAN RULES OF CONTRACT INTERPRETATION
Can there be a common European doctrine of contract interpretation?
It would seem that not. (1) Legislation: some countries have very detailed rules (France and Spain), some have no rules at all (England), most have only very few rules (Germany, Scandinavia). (2) Treatises: most contract law books have a chapter on interpretation, but some do not even mention the word "interpretation". E.g. Günther Treitel's 1000-page volume The Law of Contract does not have even a single section dedicated to the topic. 
On the other hand, contract disputes are solved everywhere and presumably not so differently, after all. 
Many questions arise: How central a topic is interpretation (under any name) in contract law? How many per cent of a country's contract doctrine is about interpretation? What else courts do in deciding contract disputes besides interpretation? Can questions about contract formation and contract damages be meaningfully distinguished from questions about interpretation? 
I will argue first that interpretation is the tail that wags the dog of contract law and second that we do not need a new doctrine because we already have Savigny's canons to which all or most rules of interpretation can be reduced.  

________________________________________

Vojko Strahovnik
University of Ljubljana and Graduate School of Government and European Studies, Kranj, Slovenia

TRANSNATIONAL LAW, GLOBAL JUSTICE, AND AGENTS OF JUSTICE: AN ETHICAL CASE FOR RESPONSIBILITY OF TRANSNATIONAL CORPORATIONS
The paper will address selected challenges for the transnational law in relation to human rights obligations of transnational corporations. First the notions of global justice and an agent of justice will be developed. Global justice is an aspect of global ethics, which is centred on justice on a world scale and focusing especially on the domain of international and global institutions and those actions and policies of states and other actors in the global sphere that affect the world order. Agents of justice are all agents and agencies that can contribute to the construction of global justice, play some part in institutionalizing principles of this justice or conform by them (O’Neill). The main challenge is conceptualizing, planning and setting up a proper framework of transnational or global justice that would go beyond more traditional, state-oriented conceptions, recognize globalization dynamics of the changing world, and identify proper agents of such global justice. In the paper I will defend the thesis that transnational corporations should be viewed as important agents of justice and present an outline for classification of their corresponding duties and responsibilities.  
________________________________________

Luka Martin Tomažič
European Faculty of Law in Nova Gorica

ONTOLOGICAL TURN AND THE INFLUENCE OF UNDEFINED OR MULTI-MEANING NOTIONS ON THE MODERN UNDERSTANDING OF INTERNATIONAL LAW

In law, the traditional order of epistemology and ontology is turned on its head. Instead of reality as a precondition to existence of theories regarding reality, there exists primarily a more or less defined normative system, which in turn becomes the object of interpretation. The consequence of the above-mentioned is that regarding ambiguous legal norms, such undefined or multi-meaning notions can become an interpretative battleground of several opposing value systems and particular interests. This is especially true in international law, where due to it being a law in rudimentary sense, ambiguity is not only present, but prevalent.  Norms of international law are thus often used not as commands or prohibitions, but merely as tools, whose primary purpose is the justification of a particular political standpoint. A strong influence on the effectiveness of argumentation is therefore not only its rationality but also the ability of the interpreter to force the acceptance of his viewpoint with the use of arguments of power. A legal position regarding certain ambiguous norm of international law will thus oftentimes be accepted as ex tunc correct in case of real-world events being in accordance with the beforehand stated legal position. In the article, author will discuss the above and the consequences it has for the further development and understanding of international law.
________________________________________

Robert Walters
Victoria University Melbourne, Australia & European Law School, Faculty for Government and European Studies, Slovenia
TRANSNATIONAL PRIVATE INTERNATIONAL & HUMAN RIGHT LAW – THE SLOVENIAN AND AUSTRALIAN COMPARISON

Transnational law can apply to many areas of law and policy. This includes corporations, states and individual citizens. This paper will compare the private side of citizenship and the interaction between an Australian and Slovenian citizen across international borders. This paper will demonstrate how Slovenia and Australia have applied the legal principles of citizenship, residence and location (country) in private international law matters.  On the one hand, these principles have been described by the a single piece of legislation in Slovenia, the Private International Law and Procedures Act (PIL Act).  On the other hand, Australia does not have equivalent legislation and is the responsibility of the judiciary to determine when the legal principles of citizenship, residence and location (country) in private international law matters apply.  Additionally, this paper will explore how Slovenia and Australia have established bilateral agreements for their respective citizens in the areas of health care and social security.  Thus, the actors in transnational law can be both the individual citizen and the state. This paper will also compare the expressed constitutional rights of Slovenia and Australia, and demonstrate how Slovenia is a leader in this important area of constitutional law. Finally, this paper will also demonstrate how Australia has looked to the European Union and European Court of Human Rights in Strasbourg for guidance as well as borrowing law and jurisprudence in the area of human rights law.
________________________________________

2015





Ljubljana, Slovenia, 18. – 19. November 2016

“Modern Legal Interpretation: Legalism or Beyond?”




Legalism or legal formalism usually depicts judges who apply cases by merely applying preexisting legal rules. They do not legislate, do not exercise discretion, do not balance or pursue policies and definitely do not look outside conventional legal texts for guidance in deciding new cases. For them law is autonomous domain of knowledge and technique. What they really follow are the maxims of clarity, determinacy, and coherence of law. This perception of law and adjudication, with its relevance for interpretation and argumentation, can sometimes be even designated as “orthodox lawyering”. Although legalism in its broadest term can mean a separate legal culture, in the frame of this conference we’ll rather focus on legal interpretation by trying to address the following questions: is legalism as a distinctive theory of legal interpretation still a feasible theory of interpretation? Has it been even reiterated again today? How can its formalist approach withstand a critique from Dworkinian (moral) interpretivism or accusations being a myth masking political preferences from legal realists? What light do new findings in neuro science shed on legalism as an interpretative approach? What other theories such as, e.g., psychological, psychoanalytic, sociological, economic, pragmatist, or phenomenological theories of adjudication and interpretation have to say about the legalist methods of interpretation? These and some other issues concerning legal interpretation will be discussed in the workshops of this conference in order to find some clues about the modern state-of-the art of legalism and legal interpretation. 


Venue and format

The two-day workshop will be held at the Graduate School of Government and European Studies and the European Faculty of Law in the beautiful surroundings of Ljubljana Old Town on 18 and 19 November 2016. The conference will be structured into several panels. The event aims to bring senior and junior researchers from the above fields together. A special panel will be devoted to presentations by PhD researchers.

Financial support

The organisers will cover up to two nights’ accommodation in a hotel in Ljubljana.

Submissions


The European Faculty of Law (www.evro-pf.si) and the Graduate School of Government and European Studies (www.fds.si) invite researchers undertaking research on the proposed topic to submit abstracts for consideration. Interested applicants should send a 250-word abstract and a CV in narrative form by 1 September 2016 to marko.novak@evro-pf.si. Authors will be notified of acceptance by 15 September 2016. If you have any questions, please write to marko.novak@evro-pf.si. 

Organising Committee:

Marko Novak, European Faculty of Law
Matej Avbelj, Graduate School of Government and European Studies
Jernej Letnar Černič, Graduate School of Government and European Studies
Vojko Strahovnik, European Faculty of Law


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The conference webpage is set up in the blog form. Please also use the links to pages above for general information about the conference, program, past conferences and useful information for participants. 10th Conference on Legal Theory, Legal Argumentation and Legal Philosophy Ljubljana, November 29th – 30th , 2019  © VS