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No, the alternative is courts that respect the boundaries of treaties. The ECJ can apparently rule that 'The Constitution is Unconstitutional'. Which is a probl

by jariel 7y ago

No, the alternative is courts that respect the boundaries of treaties. The ECJ can apparently rule that 'The Constitution is Unconstitutional'. Which is a problem.

ben_w 7y ago
Deciding what the treaty means is literally the job of the ECJ. I think (in both the sense of ”I believe it is” and “I believe it ought to be“) that that means it gets to decide which bits are or are not conscionable in much the same way and for much the same reasons that the UK courts get to decide that certain things cannot be signed away by contracts under UK law.
- jariel 7y ago
  "Deciding what the treaty means is literally the job of the ECJ." And there you have laid the foundation for the obliteration of liberal institutions. This purview has taken hold in the last 50-ish years around the world, leading to Judicial Supremacy. I would use a polite term like 'absurd', but I think 'stupid' is a better term for the powers that courts have evolved to have, to the point wherein they de-facto make the law, which is not correct. If the EU legislators, with 1000's of the nation's top lawyers, cannot enact legislation that is lawful, then something is very deeply wrong. How is it that a handful of other lawyers, sitting in a different institution can have a fundamentally different reading of the same thing? Any ruling by the court that overturns relatively recent legislation should cause calamity and consternation. At very least there should be a means to translate legislation into law that facilitates the participation of some officials to make sure that it's legal.
  - int_19h 7y ago
    You're effectively advocating parliamentary sovereignty. Which is a British tradition, no doubt - but most other countries aren't operating under these principles, and never did, so it's not a "last 50-ish years" thing.
    - jariel 7y ago
      I don't think Constitutionally-bound legislatures count as 'Parliamentary Sovereignty' moreover, the alternative, 'separation of powers' - is simply not that, it's just 'Judicial Supremacy'. It's ridiculous that Europe's top lawyers make a treaty, and then some of Europe's other top lawyers say that it's illegal, whilst all reading the same, plain document. If the constitutionality of a law is 'not apparent' to Europe's top lawyers, then it's definitely not apparent to the other lawyers at the ECJ either; there should be a different process for determining the constitutionality of laws, that is separate from more common judicial rulings. And definitely the ECJ should not be able to rule on its own jurisdiction, this is crazy. Love this bit from Wikipedia: "The court ruled that the Community constitutes a new legal order, the subjects of which consist of not only the Member States but also their nationals. The principle of direct effect would have had little impact if Union law did not supersede national law. Without supremacy the Member States could simply ignore EU rules. In Costa v ENEL (1964), the court ruled that member states had definitively transferred sovereign rights to the Community and Union law could not be overridden by domestic law." These are revolutionary proclamations. "Oh, by the way, that treaty you signed that you thought meant that thing, well, we're going to rule that we have all the power. So, guess what, it meant something you didn't understand, and what you didn't know is that you were literally handing over sovereignty to us. Thanks, we own you now"

by jariel 7y ago

No, the alternative is courts that respect the boundaries of treaties. The ECJ can apparently rule that 'The Constitution is Unconstitutional'. Which is a problem.

ben_w 7y ago

Deciding what the treaty means is literally the job of the ECJ. I think (in both the sense of ”I believe it is” and “I believe it ought to be“) that that means it gets to decide which bits are or are not conscionable in much the same way and for much the same reasons that the UK courts get to decide that certain things cannot be signed away by contracts under UK law.

jariel 7y ago
"Deciding what the treaty means is literally the job of the ECJ." And there you have laid the foundation for the obliteration of liberal institutions. This purview has taken hold in the last 50-ish years around the world, leading to Judicial Supremacy. I would use a polite term like 'absurd', but I think 'stupid' is a better term for the powers that courts have evolved to have, to the point wherein they de-facto make the law, which is not correct. If the EU legislators, with 1000's of the nation's top lawyers, cannot enact legislation that is lawful, then something is very deeply wrong. How is it that a handful of other lawyers, sitting in a different institution can have a fundamentally different reading of the same thing? Any ruling by the court that overturns relatively recent legislation should cause calamity and consternation. At very least there should be a means to translate legislation into law that facilitates the participation of some officials to make sure that it's legal.
- int_19h 7y ago
  You're effectively advocating parliamentary sovereignty. Which is a British tradition, no doubt - but most other countries aren't operating under these principles, and never did, so it's not a "last 50-ish years" thing.
  - jariel 7y ago
    I don't think Constitutionally-bound legislatures count as 'Parliamentary Sovereignty' moreover, the alternative, 'separation of powers' - is simply not that, it's just 'Judicial Supremacy'. It's ridiculous that Europe's top lawyers make a treaty, and then some of Europe's other top lawyers say that it's illegal, whilst all reading the same, plain document. If the constitutionality of a law is 'not apparent' to Europe's top lawyers, then it's definitely not apparent to the other lawyers at the ECJ either; there should be a different process for determining the constitutionality of laws, that is separate from more common judicial rulings. And definitely the ECJ should not be able to rule on its own jurisdiction, this is crazy. Love this bit from Wikipedia: "The court ruled that the Community constitutes a new legal order, the subjects of which consist of not only the Member States but also their nationals. The principle of direct effect would have had little impact if Union law did not supersede national law. Without supremacy the Member States could simply ignore EU rules. In Costa v ENEL (1964), the court ruled that member states had definitively transferred sovereign rights to the Community and Union law could not be overridden by domestic law." These are revolutionary proclamations. "Oh, by the way, that treaty you signed that you thought meant that thing, well, we're going to rule that we have all the power. So, guess what, it meant something you didn't understand, and what you didn't know is that you were literally handing over sovereignty to us. Thanks, we own you now"