Towards Dissent at the CJEU? Lessons from the ICJ

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The EU is facing serious challenges which raise existential questions about the project and cause increased focus on whether it can maintain its legitimacy. In particular, one encounters prescriptions for a more deliberative EU whose citizens have more opportunities to effectively contest its direction. The Court of Justice of the European Union (CJEU)’s place within this milieu is often conceptualised as a potential guardian of deliberative-democratic processes. This article draws on the experience of other courts, especially the International Court of Justice (ICJ), to consider the CJEU's role from another angle. Using Hübner Mendes’ model of a deliberative court, it asks whether the CJEU can be reconceptualised as a site that allows EU citizens to deliberate about and contest the future of the polity. Specifically it asks whether this could be achieved if the CJEU allowed its judges to issue separate opinions, a method that has greatly assisted the ICJ and other courts in adopting a deliberative posture. It concludes that the ICJ's approach to judgment-giving, which sees a single majority opinion buttressed by separate concurrence and dissent, is an effective blueprint for the CJEU to follow. It better emphasises the law's contingency, creates effective space for its reasoning to be scrutinised and contested, and allows the development of alternative jurisprudences which may inform the law's future.
Original languageEnglish
Publication statusUnpublished - 3 Jul 2017
EventThe Future of International Courts - University of East Anglia
Duration: 3 Jul 20173 Jul 2017


ConferenceThe Future of International Courts

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