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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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General Principles of Law: The Role of the Judiciary

Edited by: Laura Pineschi

ISBN13: 9783319191799
Published: July 2015
Publisher: Springer-Verlag
Country of Publication: Switzerland
Format: Hardback
Price: £90.00

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This book examines the role played by domestic and international judges in the "flexibilization" of legal systems through general principles. It features revised papers that were presented at the Annual Conference of the European-American Consortium for Legal Education, held at the University of Parma, Italy, May 2014.

This volume is organized in four sections, where the topic is mainly explored from a comparative perspective, and includes case studies. The first section covers theoretical issues. It offers an analysis of principles in shaping Dworkin's theories about international law, a reflection on the role of procedural principles in defining the role of the judiciary, a view on the role of general principles in transnational judicial communication, a study on the recognition of international law from formal criteria to substantive principles, and an inquiry from the viewpoint of neo-constitutionalism.

The second section contains studies on the role of general principles in selected legal systems, including International Law, European Union Law as well as Common Law systems. The third section features an analysis of select legal principles in a comparative perspective, with a particular focus on the comparison between European and American experiences.

The fourth and last section explores selected principles in given areas of law, including the misuse of the lex specialis principle in the relationship between international human rights law and international humanitarian law, the role of the judiciary in Poland as regards discrimination for sexual orientation, and the impact of the ECtHR case law on Italian criminal law with regard to the principle of legality.

Overall, the book offers readers a thoughtful reflection on how the interpretation, application, and development of general principles of law by the judiciary contribute to the evolution of legal systems at both the domestic and international levels as well as further their reciprocal interactions.

Mortimer N.S. Sellers
Laura Pineschi

Part I General Principles and the Judiciary: Legal Theory and Courts' Interactions
Principles and Disagreements in International Law (with a View from Dworkin's Legal Theory)
Gianluigi Palombella
Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication
Christopher J. Peters
General Principles of Law and Transnational Judicial Communication
Elaine Mak
Recognition of International Law: From Formal Criteria to Substantive Principles
Leonardo Marchettoni
The "Doctrine of Principles" in Neo-Constitutional Theories and the Principle of Reasonableness in Action
Francesco De Vanna

Part II General Principles and the Judiciary: Legal Systems and Domestic Frameworks
Judicial Control of Juries and Just Results in the Common Law System: A Historical Perspective
Frederic N. Smalkin
General Principles of International Law: Struggling with a Slippery Concept
Elena Carpanelli
"Please Handle with Care!" - Some Considerations on the Approach of the European Court of Justice to the Direct Effect of General Principles of European Union Law
Nicole Lazzerini

Part III General Principles and the Judiciary in a Comparative Perspective
Principio di determinatezza and the Void-for-Vagueness Doctrine in Constitutional Litigation: The Italian Corte costituzionale and the United States Supreme Court
Michele Boggiani
Antidiscrimination Law and Limits of the Power of Dismissal: A Comparative Analysis of the Legislation and Case Law in United States and Italy
Fabio Pantano
Principle of Non-Discrimination on the Ground of Sexual Orientation and Same-sex Marriage. A Comparison between United States and European Case Law
Veronica Valenti
Healthcare Right and Principle of "Minimum Standards": The Interpretation of the Judiciary in a Comparative Perspective
Monica Cappelletti

Part IV The Role of the Judge and General Principles in Selected Issues and Case Studies
The (Mis-)Use of General Principles of Law: Lex specialis and the Relationship between International Human Rights Law and the Laws of Armed Conflict
Silvia Borelli
Discrimination for Sexual Orientation in Poland: The Role of the Judiciary
Katarzyna Girdwoyn
Principle of Legality and Role of the Judiciary in Criminal Law: The Influence of the ECtHR Case Law on the Italian Legal System
Francesco Mazzacuva.