• Justice Handy, legal realism and legal instrumentalism
  • Two cases: Loncher v. New York (US Supreme Court) and Viking (European Court of Justice)
  • Oliver Wendell Holmes and American legal realism
  • Richard Porsner and law and economics

Justice Handy and legal realism: law is a human creature, and judges are human beings: focus on human reality underlying law.

  • Implausibility of a higher moral of natural law (vs Foster).
  • Impossibility of purely formal justice (vs Keen).
  • Impracticability of separation of powers (vs Truepenny).
  • Implausibility of the division between an impersonal and a personal standpoint (vs Keen). There are only a few fundamentel rules, the rest is common sense. The judges should decide the case using their practical wisdom and common sense.

Justice Handy and legal instrumentalism: laws are just tools to foster the goals of society.

  • The law must preserve a reasonable accord between rulers en ruled.
  • Judges must ensure the law's social acceptability.
  • Judges must decide the case according to what society wants. Consesus in society. Public opinion of Newgarth is in favour of pardon or symbolic punshment. Supreme Court must follow general consensus (common sense) instead of constructing artificial arguments.

Whats is common sense?

  • Different interpretations of common sense in the opinions of Foster (morality) and Handy (majority). Holmes in Lochner: dominant opinion, ECJ in Viking: economic reationality.
  • Law can pursue conflicting purposes (Radbruch).
  • Opinion polls are not be desirable criteria for adjudication (Habermas).

US Supreme Court, Lochner v New York:

Constitutionality of a US law limiting the working time of bakers to 60 hours/week or 10 hours/ day. Protecting employers freedom of contract versus protecting employees labour rights.

  • Constitutional protection of contractual freedom against State interference negative right.
  • Constitutional protection of the labour rights and health of employees by state positive right.

The generla right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labour, except as controlled bu the State in the legitimate exercise of its police power.

Is this a fair, reasonable and appropriare exercise of police powers of the State or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personel liberty?

  1. Justice Peckham for the majority of the Court: evaluation of the statute not according to its proclaimed purpose but according to its natural effect. The regulation of working hours might seriously cripple the ability of the labourer to support himself and his family. The state would assume the position of a superior, or pater familias, over every act of the individual.
  2. Justices Harlen, White and Day: wide discretions of the legislature in determining not only what the interests of the public require, but what measures are necessary for the protection of such interests. Annulling the state would seriously cripple the inherent power of the state to case for the lives, health and wellbeing of their citizens. Shorter hours of work can protect the physical well-being of workers en therewith increase the industrial efficiency of the wage-working class.
  3. Justice Holmes: judges should take account of majority in society (Handy). This case is decided upon an economis theory which a large part of the counrty does not entertain. The word liberty in the 14th amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.

Viking case - European Court of Justice. International transport workers federation and finish seamen'union v. Viking line. Finish company (Viking) wants to re-flag one of its ships that serves a route between Finland and Estonia under the Estonian flag. In order to employ its workers under Estonian law with lower labour standards and cheaper wages. To avoid competitive disadvantages in comparison with other ships serving the same route.

FSE and ITF: policy against flag of convenience to prevent lowering of labour standards. Takes industrial action against Viking.

Article 49 TFEU: freedom of establishment. Restrictions of the freedom of establishment of nationals of a Memer state in the territory of another Member state shall be prohibited.

  • Confers rights on corporations against trade unions.
  • Otherwise private actors could distort and endanger the European common market.
  • The trade union's industrial action constitates a restriction of viking's fundamentl freedom of establishment.

Article 28 EU Charter of Fundamental Rights: rights of collective bargaining and action. Workers and employers, or their respective organizations, have the right to negotiate and concludie collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

  • The EU is not simply a single market, but also pursues a policy in the social sphere.
  • The protection of the right of workers van constitute an overriding reasong of public interest.

Fundamental freedoms (4 market freedoms and European integration):

  • Economic integration, internal market and common currency.
  • 4 fundamental freedoms. Free movement of goods, ciptal, services and people.
  • Fundamental market freedoms of corporation Viking.

Versus fundamental rights:

  • Social integration, uncluding labour protection.
  • Fundamentel rights as part of the general principles of EU law and enshrined in the Charter of Fundamental Rights of the European Union.
  • Fundamental rights of workers (right to industrial action).

European Court of Justice: balancing fundamental freedoms and fundamentel rights.

A restriction of freedom of establishment through collective action can be justified by an overriding reason of public interest, such as the protection of workers, provided that it is established that the restriction is suitable for ensuring the attainment of the legitimate objective pursued and does not go beyond what is necessary to achieve that objective.

Legal realism: law is rooted in society and must respond to social needs.

  • Handy: appeal to common sense as majority opinion.
  • Holmes in Lochner: dominant opinion in society.
  • ECJ in Viking: common market.

Legal instrumentalism: law should foster goals that society sets itself:

  • Handy: law as a tool.
  • Peckham in Lochner: priority of economic liberty (freedom of contract) over workers in protection.
  • ECJ in Viking: protection of fundamentel market freedoms.
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