External Relations Law of the European Community —— Legal Reasoning and Legal Discourses

----- 欧盟对外关系法

ISBN: 9789041126047 出版年：2008 页码：526 Holdgaard, Rass Kluwer Law International

"External Relations Law of the European Community" provides an in-depth legal analysis of the core legal framework of EC external relations law, which will be useful to both academics and practitioner. In addition, the book discusses a range of plausible theoretical positions for Community law and introduces new operational analytical methods. The book begins by noting two characteristics of most legal analyses in the field of EU external relations. First, it is often assumed that EC external relations law cannot be studied or applied without a constant awareness of underlying political dynamics, while it too often remains unclear how these dynamics are to be understood, assessed and systematically applied. This pragmatic outlook reduces the importance and value of a self-reflective, rational and coherent legal language.Second, the bulk of legal analyses tend to focus only on narrow segments of the ECJ's case law, often taking as their points of departure individual cases or a group of topically related cases. This commentary's approach neglects questions concerning the general legal structures and meaning configurations in the field. Against this backdrop, the author sets out to strengthen the legal language in the field of EC external relations. This agenda is not as uncontroversial and conservative as it may appear. In contrast to the 'commentary' approach, the first two parts of the book approach each legal issue from a framework perspective in which the general legal structures in EC external relations law are reconstructed.With rare clarity, it is shown how, by relying on jurisprudential language, solutions and explanations can be drafted to problems in EC external relations law which have too often been considered legally obscure and explicable only or mainly with reference to non-legal factors. With extensive references, these parts of the book provide in-depth legal analyses of a wide range of topics concerning the distribution between the EC and the Member States of norm-setting authority in their external relations, i.e. the rules that determine what the EC and the Member States can do (individually or together) in international relations; and the reception and application of rules of international law within the Community area, including the way in which international law enters Community law.In the third and more theoretical part of the book, the author develops and applies a methodology inspired by discourse analysis in order to provide new insights and tools for legal analysis. He uses this novel approach to identify and describe some of the most general and significant legal discourses on EC external relations produced and used by the Court and other members of the legal community. The discourse analytical component of the analysis highlights the restraints and possibilities in various strands of legal reasoning and legal understandings, and in this way provides a theoretical and methodological programme for this important area of Community law.The third part of the book provides an accessible account of a number of theoretical and analytical issues, including the social construction of law and legal reasoning, the role of discourses in this construction, basic building blocks for a discourses analysis in law, and how to reconcile legal discourse analysis in the field of EC external relations law with legal orthodoxy.