U.S. and European
courts alike often are confronted by cases litigating
conflicting fundamental rights. To resolve those conflicts,
U.S. courts often resort to balancing competing interests,
whereas European courts tend to invoke the general principle
of proportionality. 1
The approaches taken
are similar, but not the same; sometimes the general principle
of proportionality is referred to, I think wrongly, as
"balancing." The result? Confusion.
Happily, the sources
of that confusion can be fairly found and resolved. 2
A parallel problem lurking in the cases, however, is a similar
confusion as to the hierarchy of norms. What are fundamental
rights, fundamental freedoms, constitutional rights, civil
rights, human rights, and general principles of law? How are
thought recognizes a plethora of terms used to refer to
varieties of deductive general principles - or rules, which
are hierarchically superior to ordinary legislation such as:
fundamental rights and freedoms, human rights, basic rights,
general principles of law, civil rights, constitutional rights
There, too, we see confusion due to a lack of basic*88
Diligent sourcing and rational hierarchization, however, can
resolve the confusion and ambiguity of rights discourse,
enabling further transatlantic rapprochement of legal
reasoning. The rise of fundamental rights, whether called
basic freedoms, human rights, constitutional rights, civil
rights, or general principles of law, is the
constitutionalization of private law. 5
The fact that these general deductive rules merge into and map
onto each other is one example of what I call norm
Such convergence is
one element of the construction of a global ius commune
featuring deductive general principles of law from the
civilianist legal system alongside binding case law from the
Anglo-Saxon common law system. This global ius commune
justifies itself by seeking to attain fulfillment of
fundamental rights, expressed as general principles of law and
adjudicated via the general principle of proportionality. 7
This paper argues
that fundamental rights, human rights, constitutional rights,
and general principles of law can be properly assimilated into
each other because these norm complexes are used deductively
as hierarchically superior "meta-rules" for the elaboration of
other rules subordinated to them. 8
This paper further
argues that the remaining general deductive norm complexes
such as civil rights and basic rights or freedoms (which to my
view are hierarchically subordinate) can, likewise, be
categorized and hierarchized by way of concepts such as
substance versus procedure, natural versus positive, alienable
versus inalienable, and by relating these hierarchically
subordinate general categories to each other and to the
abovementioned general deductive norm complexes.
One tendency in
contemporary legal thought is the clash of general *89
deductive principles, or
fundamental rights, in cases heard before courts--the
constitutionalization of what were once mere political rights,
and their juridification, i.e. judicial adjudication through
national constitutional courts and transnational courts and
court-like bodies. 9
A second tendency in
contemporary legal thought is the relativization of
constitutional rights against each other. Rather than seeing
fundamental rights as absolute and inviolable (the approach in
early modernity), fundamental rights today are generally
regarded as contextualized against each other. 10
The courts, noting that each of the clashing rights is somehow
fundamental, try to resolve the conflict between fundamental
rules or principles either by "balancing" 11
the competing interests against each other (multi-factor
interest analysis) or by engaging in judicial review to check
whether the act in question is a proportional means (normally,
a rational means; exceptionally, a necessary means) to a
permissible end (means-end rational review with strict
scrutiny for suspect classes). 12
The tests and their
application are complex. The doctrinal nuances and
distinctions of such basic normative conflicts between
competing deductive general principles are best extracted by
considering the methods used in the United States ("U.S.") and
the European Union ("EU") separately in order to note the
commonalities and then synthesize common practices.
Accordingly, this article illustrates the clash of competing
relativized fundamental rights and the resolution of that
clash using the examples of the cases of Viking 13
and Laval. 14
Viking and Laval are
examples of conflicts between deductive fundamental*90
general principles. We
will use them to extract the general principle of
proportionality used in the EU court system in order to
compare that legal method to what U.S. jurists somewhat
inaccurately refers to as "balancing", a polysemic term. One
aspect of "balancing" is more accurately referred to in U.S.
parlance as: means-end rational review with strict scrutiny
for suspect classes. Both the EU general principle of
proportionality and the different varieties of the U.S.
interest "balancing" face the same problems: the legality of
state action, which infringes on fundamental rights and the
evaluation of competing interests. 15
By examining the
cases, we can extract, compare, and critique the relevant
In Viking, the E.U.
faced the conflict of the right to strike by a labor union
with the right of enterprises to establish themselves anywhere
in the Union. 16
That case, as is
typical of so many contemporary cases, represented the clash
between two general fundamental rights: the right to strike
and the freedom of establishment. 17
Viking was resolved
first by assimilating the competing rights into each other 18
then by relativizing those rights against each other, 19
and finally by regulating their relativized interplay via the
general principle of proportionality. 20
Here, as a matter of
method?not substance, as I agree with the result--I critique
the Viking decision. Viking did not ask the question of
whether the freedom of establishment was invaded by the right
to strike or, instead, whether the right to strike was invaded
by the freedom of establishment. The court's decision is also
open to critique, as the European Court of Justice ("ECJ")
could have plausibly decided the case either way, both as a
matter of practical fact and as a matter of law.
Viking and Laval are
typical example of what Ronald Dworkin refers to as "hard
--cases which are
critically important, which the court could decide either way,
and which are, in Connolly's terms, "essentially contested"
i.e. polysemious and conflicted. 22
Because the ECJ
could have justifiably ruled either way, it faced two
problems: the problem of legal reasoning (what is "right
i.e., "how to") and
the problem of *91
justification (why is the
reasoning right? i.e., "why to"). These two problems are
different from each other, but they are also related to each
other. I use Viking to draw out the problems of legal
reasoning and of justification in order to try to help the
courts find solid ground--a workable taxonomy of fundamental
rights--on which to adjudicate fundamental normative conflicts
to improve the efforts at transatlantic comparative law,
specifically with regard to what I call "norm convergence" 24
and with respect to "rights discourse." 25
review distinguishes judicial review of conflicting
fundamental rights subject to the Equal Protection and Due
Process clauses from judicial review of conflicts of
fundamental rights in cases involving the Fourth Amendment 26
and the Takings Clause. 27
to the U.S. Constitution
prohibits unreasonable, e.g. warrantless, government searches
and seizures of persons and things. 28
The Takings Clause,
for its part, states that private property shall not be taken
by the state for public use without just compensation. 29
In the context of the Fourth Amendment 30
and in the context of the Fifth Amendment's Takings Clause, 31
and, at times, in the context of procedural due process, the
U.S. Supreme Court balances the competing interests of the
plaintiff and defendant. The various interests of each party
are taken into account and expressed as factors and the
various factors are assigned a weight, 32
generally implicitly. 33
The factors which
favor the plaintiff are then compared against *93
the factors favoring the
Where the factors
are of equal weight, the decision goes against the party
bearing the burden of proof 35
plaintiff, because of the general principle that the moving
party ordinarily bears the burden of proving their position. 36
Some factors, if satisfied, may be dispositive. I refer to
this as "multi-factor interest balancing" . Multi-factor
interest balancing occurs at times in the due process context
as well, 37
though it seems
more clearly visible to me in the Fourth Amendment 38
and the Takings Clause context.
interest balancing tests, 39
however, can be
easily manipulated. Which party should be considered as having
relevant interests? 40
Which interests of
the parties should be considered in the balance? Finally, *94
what weight should be
applied to the various interests to be balanced? The competing
interests are generally not specified by legislation; the
weights to be applied certainly are not. Multi-factor
balancing tests allow judges to manipulate legal outcomes by
a) the selection of persons with interests to be considered;
b) the selection of interests of relevant parties to be
considered; and c) the determination of the weight to be
attached to the relevant interests of relevant persons. 41
The ability of
judges to select which persons and interests are relevant
opens balancing tests to criticism as being unpredictable,
manipulable, subjective, and unjust. 42
These criticisms can only be answered by introducing economic
and policy arguments into legal balancing tests. If some--or,
better yet, all--of the relevant interests are valued
monetarily, or if the political will of the legislator can be
this critique is
reduced, or disappears. The problem of attributing objective
weights to competing interests partly explains the rise of law
and economics as a solution to the problem of judicial
voluntarism. Multi-factor interest balancing tests are most
visible and least manipulable in economic contexts such as
takings because, with respect to takings, the court is
directly concerned with market value, i.e. quantifiable
economic interests. 44
Ad hoc multi-factor
interest balancing is methodologically weak (Whose interests?
Which factors? What weight?). 45
A related method
for resolving conflicting fundamental rights, sometimes also
called balancing, arose in the due process and equal
protection contexts: rational basis means-end review with
strict scrutiny for suspect classes. 46
This method is rarely termed "proportionality" in U.S. legal
discourse, but it will be immediately obvious to a European
lawyer that we are looking at that method: the law must be
that is, it must be
a rational and necessary *95
means to a permissible
end, which burdens fundamental human rights as little as
Means-end review in
U.S. law arises most evidently in the context of equal
protection and due process. 49
The typical case is
an action by the government, which infringes on a
constitutional right. 50
The action is then
challenged by a private person as unconstitutional. 51
If the law is not a rational means, or if the end sought by
the law is impermissible (e.g., the end is ultra vires; or,
likewise, the end extinguishes an inalienable fundamental
constitutional right), then the law will be quashed as an
unconstitutional exercise of state power. 52
Typical cases arise out of violations of the constitutional
guarantee of due process or equal protection. In simplest
terms, the law must be a reasonable means to a permissible
If the law burdens a "suspect class" 54
(racial minorities for example), or infringes a fundamental
constitutional right, 55
then the law must
serve a compelling state interest and the means chosen must be
the least restrictive of the fundamental right so infringed.
The most coherent expressions of means-end review also require
that, in cases of strict scrutiny, the law must not be a
merely rational means, but also a necessary means to a
permissible end. 56
All of this,
the concept of "suspect
class", is strikingly familiar to E.U. lawyers. I have
elsewhere addressed the origins and rise of the general
principle of proportionality as a globalized and globalizing
trait of contemporary legal thought. 57
I regard that principle as an apotheosis of western legal
thought: the rule of law. 58
doctrine seems conflicted and confused in the use of
multi-factor interest balancing and in the use of means-end
review with strict scrutiny for suspect classes. I say that
because in the due process context sometimes we see
multi-factor interest balancing, 59
but we also see
means-end review. 60
Meanwhile, there is
the lurking issue of whether the Due Process Clause speaks
only to procedural rights, or also has a substantive content:
that issue seems currently settled but has not always been so
- and times change. 61
There is also the
issue of whether the Due Process *97
Clause of the U.S.
Federal Constitution may be invoked by individuals against the
U.S.federated states, which parallels the issue of direct
effect in the E.U. Finally, there is also the issue whether
the Constitution (or EU Treaty) may be invoked as creating
rights and duties among private actors inter se which in the
U.S. is addressed under the rubrics "state action" and "color
of law" whereas in Europe it is addressed as the problem of
"third party affect" (also known as "Drittwirkung"). How are
these issues, which clearly parallel corresponding U.S.
doctrines and issues, treated in E.U. law?
principle of proportionality requires that laws be rational
and necessary means to a permissible end. 62
The case of Laval, which adjudicated the right of
establishment against the right to strike, is a typical
example of both the clash of fundamental rights and the use of
proportionality to resolve that clash. 63
In Laval, the court
ruled that a restriction on fundamental freedoms such as the
right of establishment "is warranted only if [1 it pursues a
legitimate objective compatible with the Treaty [legitimate
ends] and is justified by [2 overriding reasons of public
interest; if that is the case, [3 it must be suitable [i.e.
reasonable] for securing the attainment of the objective which
it pursues and [4 not go beyond what is necessary in order to
attain it" [necessity]. 64
This test -
proportionality - looks very much like the means-ends rational
review test with strict scrutiny for suspect classes seen in
U.S. law. The two tests likely share a common theoretical
however, is that we are comparing two competing fundamental
rights. Thus, we could easily characterize either right as
being invaded by the exercise of the other. 66
Moreover, whichever right we characterize*98
as invaded by the
exercise of the other right will have, at least as a practical
matter, an inevitable procedural advantage over the invading
right, due to the burden of proof as well as the presumption
of the legality of legislation. 67
For both of those
reasons, the doubtful cases?and hard cases are always
doubtful?will, as a matter of logic and procedure, tend to be
resolved by default in favor of the invaded right because of
the allocation of the burden of proof. 68
If, and only if, we can distinguish fundamental rights from
each other can we hope to prioritize whether the right to
strike is hierarchically superior to the freedom of
effects cases - and then structure the schema of general rule
and specific exception correctly, allocating the burden of
proof and any legal presumptions accordingly.
The Viking case
presented a hopeful start when it characterized the right to
strike (more exactly the right to take collective industrial
action) as a right, 70
that right from the freedom of establishment. 71
The careful reader might have noted the different terms and
hoped to glean therefrom some definition of "rights" as
opposed to "freedoms," which would enable us to correctly
characterize the hierarchical relationship between fundamental
freedoms--here, the freedom of establishment-- and fundamental
rights--here, the right to strike. Alas, this hope for
categorical clarity to establish parameters for presumptions
and possibly also the burden of proof was dashed at the last
minute. The court, in keeping with the contemporary trend,
assimilated freedoms into rights and rights into general
The court then
relativized fundamental rights and freedoms *99
against each other, in
keeping with trends in contemporary legal thought; these
relativized rights were then regulated by the general
principle of proportionality. 73
The assimilation of
fundamental freedoms and rights into each other -making
"right" synonymous with "freedom"-- at first glance appears
sensible because "rights" and "freedoms" both are deductive
general principles. Equating fundamental rights and freedoms,
however, destroys the possible categories of "right" as
opposed to "freedom." A firm categorical distinction would
allow us to differentiate "rights" from "freedoms" and would
allow us to determine whether rights or freedoms are
hierarchically superior, which in turn would have allowed us
to allocate presumptions of legality and burdens of proof,
resulting in a clearer determination of the case and a more
plausible justification for the result. A freedom is a claim
that one is not subject to state sanction, to state
interference, to state power; the absence of constraint. I
regard "freedom" as one particular form of right. 74
c. Whose Right Was
Invaded? The Coase Theorem.
Recall that we are
trying to determine whether, by defining the nature of the
legal interest as a right or a freedom, we could establish a
hierarchization of rights with respect to freedoms such that
we would then be able to say whether the right invaded the
freedom or the freedom invaded the right. The ECJ in Viking
did not take that tack. How else might we solve the problem?
We ought not to try to solve the problem by looking to see
which party did or did not exercise the right or freedom
because, as Ronald Coase pointed out, in any conflict of
rights, the court can cast either party's right as invading or
from Coase is that looking to "first in time" or "actor versus
acted upon" is not a sensible path to try to hierarchize
rights and freedoms. 76
recast the principle that any omission may be re-characterized
as an act, or vice-versa, through the idea that rights and
duties are correlatives to reach his idea of reversibility of
injury, in order to permit courts to retreat from enthymemes
so that the court can
consciously and dispassionately analyze what outcome is
socially desirable. Coase's theorem implies that
results-oriented, outcome determinative, purposive reasoning
is legitimate. If Coase is right, then "first in time" is no
more of a solution than "act" or "omission." 77
That is, we cannot definitively determine that action is
legitimate or not based either on who did or did not act, or
based on whose right was invaded. Are there any other ways to
try to hierarchize the right to strike versus the freedom of
One step the court
in Viking takes is to compare the source of the competing
rules. The right to strike is found in national, E.U., and
international law. 78
In contrast, the
freedom of establishment is not found internationally (caveat
lector: the WTO is working on it). Since E.U. law enjoys
supremacy with respect to the law of its Member States, the
court could readily dismiss the characterization of the right
to strike by the Member State as largely irrelevant, except as
an interpretive guide to the content of the same right at the
E.U. level. Likewise, the court was free to essentially ignore
the right as it is defined internationally, since
international treaties are presumed not to grant rights or
duties to physical persons, or even legal persons, and to
grant rights and duties to states only, unless a different
intent is proven. 79
That is just what
the court did in order to downplay the primacy of the right to
strike with regard to the right of establishment. 80
Thus, the court did not distinguish the right to strike?a norm
found in the law of Member States, E.U. law, and in
international law?from the freedom of establishment?a norm
found only in the E.U. law. The court in Viking did not make
or rely on those distinctions in its determination that the
right to strike in that case disproportionally 81
infringed on the right of establishment. The court did not
attribute hierarchical priority to the right to strike even
though that right existed at the national and global levels. 82
In fact, the ECJ found that the competing freedom of
establishment displaced the right to strike, 83
which appears undemocratic. That in turn leads to the question
whether and how the decision of the court is justifiable.
The puzzle we are
facing--whether a given right can be categorized as somehow
hierarchically superior to another right--is an intriguing
one. It is also pervasive, yet often latent, in contemporary
legal thought due to the constitutionalization 84
of fundamental rights as the proper goal and legitimizer of
state power 85
post-Westphalian international system. 86
While I have proposed a method for categorizing and then
hierarchizing general deductive principles, i.e. fundamental
constitutional rights, 87
I leave that issue
for the end of this paper in order to encourage the reader to
think abstractly and creatively about how she or he might
resolve the conflict of norms. Further, I wish to expose other
ideas first, which I think will help to resolve the question
of whether and how fundamental rights can be hierarchized as
general principles of law and then adjudicated by the general
principle of proportionality.
interesting in the treatment given to the question of the
direct effect of the EU Treaty, 88
as well as to the
horizontal or vertical nature of that effect, whether direct,
or indirect. The court was confronted 89
with these possibilities: (1) find either a vertical
effect--between the E.U. and the Member State--or a horizontal
--(E.U. rights being
affected to private parties inter-se); (2) find either a
direct and binding) effect, or a merely indirect and
persuasive effect of the treaty; or (3) find no effect at all.
The court could have generated a plausible, coherently
structured argument to support reaching any of the five
outcomes--horizontal direct, horizontal indirect, vertical
direct, vertical indirect, hortatory norms, or no effect
whatsoever, even as a persuasive evidence of the law. The
court found that the treaty had a (1) direct effect and the
direct effect was (2) horizontal, i.e. between private parties
inter se. 92
This outcome was
probably the most plausible, but we shall see it is not
a. Third Party
and constitutions only address public law persons;
exceptionally, they may grant rights and duties to physical
instruments grant rights and duties to physical persons, the
issue arises as to whether those rights are directly
enforceable by the persons so affected, or instead only
indirectly enforceable by their State (in international treaty
law, this is the question whether the treaty is self
beneficiary doctrine from contract law has been used to
analyze the problem of basic constitutional rights under the
rubric of Drittwirkung (in English, "third party effect").
"Self execution," "state action," "color of law," "third party
effect," and "direct effect" all refer to the same issue: the
application of public law to private persons and especially to
the relations of private persons inter se. 95
In order to
understand third party effect (Drittwirkung), 96
we should remember that the direct effect doctrine is
essentially the application of the contract idea of
third-party beneficiaries to constitutional and treaty
It is one
expression of the logic of an "economic constitution," that
the State establishes framework economic rules or basic rights
and that those basic rights in turn constitute the State.
Consequently, constitutions and treaties are like contracts,
and analogies to contract law can be made in the
interpretation of treaties and constitutions. The
(ordo-liberal) economic constitution consists of the idea of
"markets without states," 98
one form of a
limited State. 99
Though the economic
constitution is positive, not natural, *103
as different states have
different economic constitutions, the rights created
thereunder are basic-- i.e., fundamental. 100
This is the logical source of the distinction between natural,
fundamental, constitutional rights and positive, alienable,
fundamental economic freedoms.
in a conflict between basic rights and fundamental inalienable
rights, the inalienable fundamental right should prevail,
leaving the question of whether the right to strike is
inalienable--natural, inherent to the person--or found in all
times and places, which it is not. Categorizing fundamental
rights and freedoms may help us find their hierarchical
relationships, which in turn may help us to resolve conflicts
between them. In Viking, the court did not attempt to
categorize and establish a hierarchy of competing and
conflicting fundamental rights and freedoms. 101
Consequently, my comments here on that point are purely
b. Is the Party a
To determine the
effect, if any, of a constitutional or treaty provision, and
whether that effect is direct or indirect, horizontal or
vertical, we must first determine whether the person to whom a
right or duty applies is a state actor. 102
In the case of Viking, this should not have been so
conclusively answered in the negative. In the corporatist
model of governance, which is consistent with an ordo-liberal
vision of the economic constitution, 103
labor unions act as quasi-state organs, establishing labor
conditions such as minimum wages, maximum hours, vacation and
pension rules, and workplace safety rules. 104
They are quasi-state actors. The Viking court, therefore,
could have said that the labor union was an instance of de
facto state power; that the private law person, acting under
the color of state authority (i.e. exercising sovereign
functions --acto jure imperii) is in fact assimilated into the
State for the application of the Treaty of Lisbon--though it
did not. Such a finding would have meant that the EU Treaty
had a direct effect and that the right of establishment
applied, requiring demarcation with respect to the right to
c. If the Labor Union is
Not a State Actor, Does the Treaty or Constitution Apply?
The ECJ did not
characterize the labor union as a quasi-state actor. 105
Nonetheless, it reached the same substantive outcome as it
would have reached had it decided to treat the labor union as
a quasi-state actor. The court found the treaty directly
applicable both as to the right to strike 106
and as to the freedom of establishment. 107
Both the labor union and the enterprise were directly
addressed by the treaty and bound in their interactions with
each other to respect whatever rights were created or exposed
by the treaty. 108
By finding this
to be a case of direct horizontal effect--of public law rights
directly applicable by private law persons in their
interactions--the court retained flexibility, but lost some
credibility. The court can thus in later cases re-characterize
the rights and duties of the labor union because the direct
effect of one right does not imply a direct effect of others.
Had the court held the labor union to be an instance of state
power, all the actions of the union would be subject to rights
and duties under the treaty.
In Viking, the
court characterized the labor union as a private law person,
but nonetheless directly addressed by the Treaty, ultimately
leading us back to Van Gend & Loos, which held that
private persons under the Treaty are addressees of basic
rights and duties. 109
Because the ECJ
in Viking determined the treaty had direct horizontal effect,
the question whether the third-party effect could instead have
been indirect became logically irrelevant and thus was not
addressed. The court did not address the issue of possible
indirect effects, which was prudently parsimonious. If the
court had instead decided that there was no direct horizontal
effect of private parties inter se, it would then have had to
decide whether there was at least indirect effect or no effect
at all. The decisions of the court on some questions foreclose
the consideration of others. Parsimony is prudent
adjudication, but is not a good heuristic for legal
scholarship. Hence this article tries to go beyond Viking to
see its implications.
e. The Decline of the
the court with the choices of horizontal or vertical direct
Both of those
options--the imputation of rights to private law persons by
treaty (horizontal direct effect) and the treatment of the
labor union as a quasi-state body (vertical direct
effect)--are examples of what Professor Duncan Kennedy has
long referred to as the "decline of the public-private
is less important today than it has been in the past, and it
has declined because it is seen as less and less tenable,
leading to formally justified yet substantively unjust
In E.U. law, the
doctrines by which the distinction declines are the concept of
"direct effect," "third party effect," 114
and "proportionality." 115
law/private law dichotomy declined even faster in the U.S.
than in the EU, because branches of the common law, unlike
civilian law, 116
rarely, if ever,
have independent, i.e. autonomous, principles of
All this leaves us
facing omnipresent questions that the court did not address:
(1) Did the right to strike invade the freedom of
establishment or, instead, did the freedom of establishment
invade the right to strike? (2) Would a hierarchy of
fundamental rights and freedoms help to resolve their
conflicts and, if so, how should they be placed in a
are ultimately at issue in Viking and that the court tried to
resolve the conflict at bar rather than develop and deploy a
complex structure of rights and freedoms to determine whether
the right invaded, or was invaded by, the freedom. This was
prudent and parsimonious, but also somewhat dissatisfying, as
much of the court's reasoning appears stunted and conclusory
as a consequence.
What I have tried
to hint at up to this point is the problematic nature of the
Viking case and almost all such cases dealing with conflicts
of norms. Conflicting fundamental norms are an essential and
of contemporary legal
thought. Contemporary legal thought attributed to a plethora
of rights to natural and legal persons--in response to the
failure of the state-centered approach to properly protect
human rights as shown so horrifically during the Second World
War. After human rights were attributed to persons under
national constitutions and international treaties, those
private law persons were then empowered to directly enforce
their public law rights and freedoms against each other and
states. Permitting individuals to enforce their fundamental
legal rights 117
(e.g., to life
and moral integrity 118
) against states
was a reaction to the systematic abuse of human rights during
the Second World War. The rise of fundamental rights discourse
in the post-War era is one of the key features of the
post-Westphalian system. 119
today are the goal and legitimizers of all state power as
evidenced by the existence of non-derogable jus cogens 120
fundamental rights (e.g., the right not to be tortured,
enslaved, or exterminated).
The problem with
this complex cacophony of conflicting claims--or is it an
orchestra?--at which I have hinted and now clearly and
succinctly state, is that the Judges could have constructed a
plausible judicial edifice to reach any desired result.
Judicial power in hard cases like Viking is arbitrary--not
merely in the sense of arbitral or decisional, but also in the
sense of capricious. Courts can almost always construct
plausible inferential chains to reach any result they desire:
outcomes can be manipulated. This arbitrary power, however, is
a problem, for the arbitral and possibly arbitrary judicial
power must be justified.
of judicial outcomes is disconcerting because if any outcome
could be plausibly reached, then no outcome is entirely
foreseeable. Predictable outcomes are desirable for legal
certainty and the procedural rule of law. Predictable outcomes
are needed in order to structure expectations and
transactions. If we were all governed by the unpredictability
of the Mad Hatter, then we would be unable to undertake
socially desirable economic activity.
is one problem which results from manipulability;
manipulability also renders justification more important and
more difficult. If judges can reason in formally valid ways to
any outcome they desire, how is their exercise of what amounts
to pure judicial power justifiable? How can one justify
undemocratic and unpredictable judicial fiat? If any outcome
could be plausibly reached, a justification will be needed for
every outcome, yet such justification will be impossible,
since the court could have reached any decision.
The problem then
is not merely finding the correct legal reasoning; it is also,
and more problematically, a problem of justification. So far,
we have not found a resolution in the character or
relationship of fundamental rights and freedoms. Perhaps
thinking about the judiciary as an institution may help us to
understand the problem better and even start to give us some
hints as to the solution of the problem of justification.
Recall that the
structural difference between the judiciary and the
legislature is this: judges look at transactions with
hindsight (ex post facto perspective); legislators look at
transactions with foresight (ex ante perspective). 121
The judge makes decisions ex post facto. The legislator makes
predictions ex ante. These are not the only salient
institutional differences between judges and legislators, but
the different temporal perspectives judges and legislators
bring to the governed transaction is the most important
institutional difference. The legislator provides general
rules for application of a law. The judiciary provides
specific answers to concrete cases where all facts have
There are other
institutional differences between the legislature and the
judiciary. Judges are highly intelligent and technical experts
in the law, especially in adjudication. Moreover, judges are
not economically desperate-- they are just the opposite.
Judges are neither struggling merely to survive at life,
living hand-to-mouth the way the majority of people do, nor
are they scrambling for fame, fortune, or public political
power. Furthermore, judges are democratically insulated. Of
course, the fact of democratic isolation contributes to the
problem of judicial legitimacy. Paradoxically, it is the fact
of political insulation that enables the assertion of judicial
power in the first instance. Expertise and political isolation
arguably give judges a better perspective and enable them to
make socially beneficial, albeit unpopular decisions (e.g.,
ending racial segregation). Judicial power is really only*108
legitimated after the
fact by the coherence of judicial argumentation, however
(i.e., the act of justification and the results of judgments).
If the judge gets it right, everyone is happy, even though the
judicial decision would have been rejected by the people or a
majority of voters. If the judge gets it wrong, there will be
hell to pay: at the extreme, riots, assassinations, terrorism
and repression. Moreover, the judicial activism might
backfire: the politically unpopular minority might become more
ruthlessly oppressed or exploited than ever due to backlash.
However, despite that caveat, legitimacy can arise ex post
facto through the effects of the judgment and also through the
logical persuasive power of the accepted arguments. Well
justified laws attract compliance: the governed are persuaded.
Law is not merely a man with a gun, nor is the state but a
mafia writ large.
To see the issue
of legitimacy ex post facto clearly, consider the example of
racial segregation. A majority of voters would not have voted
to end racial segregation in 1960. U.S. courts ended
segregation, not the voters or even their legislators. The
court's decisions were extremely unpopular. The results of
those unpopular decisions increased productivity and reduced
violence. Thus, the success of the outcome legitimized the
unpopular method after the fact. When the court misjudges the
resulting social influences of their decisions as beneficial,
however, conflicts result and judicial legitimacy is lost.
This is why gay people are still second class citizens in the
U.S. Institutional actors simply do not wish to risk standing
up for that minority because they cannot imagine the benefits
which will result from gay adoption, gay marriage, and
complete integration of a controversial minority into society.
In Viking and
Laval, the ECJ took the unpopular yet socially desirable
decision to effectively open Western labor markets to posted
workers and outsourcing into Eastern Europe. 122
This was the obvious decision, due to a shortage of youth in
Western Europe and a capital deficit in Eastern Europe:
demographics and capital structure explain why the outcome was
desired as well as the desire to build a single market for
goods, labor, capital, and services. 123
The logic of the union and the law of supply and demand
explain why the ECJ correctly took the politically unpopular
but societally beneficial decision. Courts are loath to admit
that they engage in such reasoning, yet it is a common
That then is our
next topic: legal reasoning, and its relation to the problem
I use the term
"effects-based reasoning" to refer to one variety of what
Duncan Kennedy calls "purposive reasoning" or goal-oriented
I am not
referring to the direct effect of public law on private
persons. I am referring by "effects-based reasoning" to a
pragmatic, results-oriented mode of thought.
reasoning, the court looks to the practical, real world
effects of transactions and decisions. The court looks to the
outcome that would result from its decision. For example, the
ECJ characterized garbage as "goods" enjoying the right of
free movement in Walloon Waste; 126
in an even more
extreme vein, the U.S. Supreme Court in Wickard v. Fillburn 127
characterized feed, grown on a farm for consumption on that
farm, as "interstate commerce" subject to federal regulation.
The courts did not look to the common meaning of the term but
instead imposed outlandish meanings to obtain a certain
reluctant to admit they engage in effects-based reasoning.
There is nothing per se illegitimate about effects-based
reasoning. The problem of justification, however, already
crucial in a close case, becomes even greater in a case
involving conflicting fundamental rights and freedoms.
Results-oriented thinking amplifies the problem of
justification. When courts reason from an outcome to determine
the legal conditions which must be satisfied for that outcome
to obtain in order to determine which legal conditions in fact
are fulfilled, the process of reasoning itself provides no
justification. This lack of inherent justification, the absent
sense that the objective preexisting law compelled the court's
decision, explains why courts are hesitant to admit to
thinking strategically about the premises which would impel
and the results which would follow a given legal decision.
Results-oriented thinking appears to subvert the judiciary's
role as expositor after the fact of legislative will. That
appearance is only illusory, however. Reasoning from possible
outcomes to known facts (backward chaining of inferences) is
legitimate because: (1) backward *110
chaining has heueristic
value; (2) backward chaining generates formally valid chains
of inferences; and (3) the question of justification is not
equivalent to the question of valid forms of legal reasoning.
of inferences is both formally valid and an excellent
heuristic. There is nothing inherently invalid about result
oriented thinking. I argue that the questions of the formal
validity of the court's reasoning, the material validity of
the court's decision, and justification are separable. Those
questions are related to each other yet are distinct.
results-oriented thinking be substantively justified? If so,
how? We can best understand effects-based reasoning by
understanding a form of inference referred to in artificial
intelligence literature as "backward chaining" of inferences.
By understanding the exact process of inferencing we can then
separate the question of formal inferential validity from
substantive justification. Once we see the formal validity and
heuristic utility of backward chaining to obtain and compare
competing results-oriented inferential chains we can then turn
more confidently to the harder problem of justification.
In this section I
wish to expose some procedurally valid modes of inferencing. I
do not wish to argue that these inferential modalities are how
courts do in fact reason, nor do I argue that courts ought to
employ the inferential methods exposed in this section. All I
wish is to show how formally logical inferential chains can be
generated and point out that courts could and maybe do or
possibly should use these modes of inferencing.
chaining" is an inferential method by which formally valid
chains of inferences are derived from a given conclusion
reasoning backward through whatever inferential steps would
support reaching that conclusion. It is reasoning from the
hypothesized outcome back to the set of known given premises.
That is, backward chaining is reasoning from a given goal back
through the possible causal inferences which would reach that
goal to the known facts. 131
"backward chain" because they want the court to reach the
decisions that favor their clients.
is the opposite of backward chaining. It is the more usual
method employed by judges. 132
chaining, one proceeds from known facts to the inferences
which they logically imply, pushing the chain of inferences
toward whatever conclusion(s) the known *111
premises entail. 133
Most courts regard
backward chaining as illegitimate when undertaken by courts. 134
This distrust of backward chaining is probably as a result of
courts' self-perceived position as neutral, uninterested
adjudicators merely applying the legislature's
prognostications. Lawyers, however, backward chain frequently.
It is considered good rhetoric, but supposedly bad
The problem with
backward chaining is not formal validity. The problem with
backward chaining is a problem of justification. Any creative
thinker can backward chain from a desired outcome to the known
facts in a procedurally valid way. The possibility to reach a
variety of formally justified outcomes exists due to the
plethora of valid inferential modes: deduction, induction,
reduction, analogy, probabilistic reasoning and because of the
variety of sources of law: custom, statute, constitution,
treaties, and, internationally, general principles of law and
scholarly works (la doctrine; Rechtslehre).
demonstration is ultimately tautological. 137
Thus, backward chaining is not useful as a method to justify
decisions. While it might reveal a formally valid chain of
inferences, that formally valid chain may well be materially
invalid. On the other hand, suppose the court backward chained
from every possible outcome and then picked the most plausible
inferential chain? Suddenly backwards chaining no longer looks
capricious, but appears formally and substantively valid. The
closest we see to this form of conscious comparative backward
chaining is in those decisions of the ECJ which are written as
response. In a responsa style decision, in the manner of
the ECJ raises
the plaintiffs' arguments, the defendants' arguments and then
its conclusion, issue by issue. 139
Even there, the *112
court is forward
chaining, but doing so by considering each argued inference
presented by the parties sequentially.
chaining is rarely admitted to and is not useful for solving
the problem of justification, it is extremely useful as a
heuristic. A heuristic is a method used to discover knowledge
(i.e. eu-reka! found it!). 140
can use backward chaining to reveal enthymemes in our
presumptions as well as possibly otherwise invisible legal
We can see that
backward chaining is in fact a formally valid method of
inference when we recall the method of logical proof known as
reductio ad absurdam. In a reductio argument, also known as
proof by contradiction, we grant all premises of a given
argument involving mutually exclusive alternatives (which we
intend to disprove) and point out that the admitted premises
necessarily lead to a self-contradiction. 141
The following is an example of the form of a proof by
Either A is true
or B is true but not both.
If B is true then
C is true.
Let us admit,
arguendo, that B is true. But that cannot be because C is not
true - therefore B is not true, therefore A is true.
In law, reductio
arguments are often mislabeled: arguing that a certain
interpretation of a law leads to a ridiculous outcome is not
reductio ad absurdam; it is reductio ad ridiculum 143
reduction to an impossibility or to the ludicrous (q.v.).
Lawyers often misuse the term "reduction ad absurdam"
confusing it with reduction ad ridiculum, but such a
beginners' error should be avoided by scholars and judges.
As a mode of
formal demonstration, reductio ad absurdam arguments *113
are valid. 144
As a mode of practical reasoning, reductio ad ridiculum
arguments state that the position argued for is inadmissible,
for it would imply some ludicrous result. 145
Recall that formal demonstration proves logically necessary
implications--what must be the case, from the given
premises--not possible implications, i.e. what might be. In
contrast, practical reasoning is probabilistic and pragmatic,
proving what is most likely the case.
wrote about intuitive reasoning, 146
he meant this
idea: out of the sum of all our experiences and capacities, in
the face of any problem, we have an intuitive foreknowledge of
the likeliest solution. 147
insufficiently skeptical toward logical intuitionism. He
thought that one's intuitions were just about always, if not
always, correct. 148
I would say that
the intuitions we have indicate the possible solution of which
we are most aware--not necessarily the best solution, nor even
necessarily the only solution. Moreover, our intuitions--our
holistic perception of the resolution to the problem--are,
sometimes, in error. Intuitions are an excellent heuristic,
however. By verifying what we believe to be the best solution,
we determine whether in fact it is a solution, the solution,
or no solution and may even discover other solutions.
neuroscience since Aristotle have shown that mental processes
are the result of neural linking. 149
We know that
neural links are plastic, 150
that neurons are redundantly networked. 151
also know that different
sections of the brain specialize in different tasks. 152
Cognitive science also has shown that the brain degrades
of, for example, a part of the brain which specializes in
speech leads to the rerouting of the neurons in the remainder
of the brain to best compensate for the lost part of the
function is thereby degraded but not entirely destroyed.
Neuroscience debates whether cognition occurs sub symbolically
or symbolically. 155
One could model
Aristotle's intuitions 156
as a sub symbolic
communication between the various portions of his brain
leading to the likeliest conclusion, - which he then
empirically verified. All this is discussed so that judges can
better understand the nature of their own innermost thoughts
in the hope that they will become better at the various
cognitive functions involved in adjudication. 157
It seems that we
are no closer to solving our problem of conflicts between
fundamental general deductive norms. I wanted first to point
out that courts can generate formally valid inferential chains
to support just about any outcome in any case. I also
illustrated the possible modes of inference (practical or
formal; backward or forward chaining), and institutional
pressures and limits to properly contextualize the problem of
justification. The only way out is to devise a taxonomy of
fundamental deductive legal rights and then to see whether
that taxonomy helps us to hierarchize rights, or at least
generate the warrants needed to determine whether the right to
strike is dispositive or if, instead, the freedom of
establishment is dispositive.
Rights - A Typology 158
If we are to solve
the problem of conflicts between competing fundamental rights
and freedoms, we need to develop a typology to understand what
rules are and if, and how, they might be hierarchized.
a. Rules are
conditional statements--if . . . then---not imperatives. 159
A law states that "if" a certain condition is satisfied "then"
a certain legal consequence follows.
b. Meta Rules are
Rules for Making Other Rules.
The first type of
rule is what I refer to as "meta rules"--rules to decide how
to validly form other rules.
(Fundamental)(Constitutional)(Basic)(Human) Rights and
Freedoms--Deductive General Principles
Legal systems are
formed with and by a variety of meta rules. 160
Those meta rules have in common that they are general
deductive principles and/or that they are procedures for
forming other legally valid rules. As a matter of formal
logic, general principles of law, fundamental rights, basic
rights, constitutional rights, civil rights, are all general
deductive principles. I argue that the distinction between
"right" and "freedom" is untenable; that "freedoms" are merely
an executory right to undertake a certain action. I have
argued elsewhere, 161
at length, for
what I regard as the tenable distinction between executory and
vested rights; between substantive and procedural rights. I
regard constitutional rights, general principles of law, and
fundamental (human) rights as logically equivalent to each
other - they the most general of deductive principles and are
hierarchically superior to ordinary laws. General principles,
constitutional rights, and fundamental/human rights are
further divided into subcategories. Civil rights, e.g., are
one particular variety of constitutional right, they are the
procedural rights which inhere in citizens to participate in
their own governance. Basic rights are also a constitutional
right. Basic rights are economic framework rights which
constitute the market order of a polity; thus they are
positive, not natural and alienable, yet nonetheless are
hierarchically prior to other positive laws. 162
have also been characterized as economic rights, political
rights, or social rights. 163
The problem with
distinguishing a right *116
as economic, political,
or social, is that some rights fit more than one category;
consequently those categories are not always useful for our
task, which is to try to categorize rights.
We can distinguish
and hierarchize general deductive norm complexes by
characterizing the rights in question as natural or positive.
Some rights are
natural, i.e. universal in time and space; most rights are
positive. Natural rights are hierarchically superior to
positive rights. Rights can also be characterized as
substantive or procedural. Procedural rights are logically
prior to substantive rights, in that procedural rights
determine how substantive rights are formed. So those are some
categorical ways to think about fundamental rights and
freedoms. The hierarchy I propose here may help us determine
which right invades which (a question the Viking court never
really asked itself).
Where do we place
the right to strike and the freedom of establishment in the
taxonomy given? The right to strike is not a procedural right,
since it does not necessarily determine how other rights are
formed. Yet it is a political right: a right to a certain form
of political expression. The problem with "political" rights
is that often that conclusion is used to sweep away any legal
implication of the existence of such a right. Yet, the right
to vote, the right to free speech, are also examples of
political rights: rights to certain procedures in the
democratic state: those political rights are in fact legally
enforceable. The political nature of human rights prior to the
Second World War incidently meant their non-enforcement and
the result was a human rights catastrophe and in the post war
world human rights suddenly stopped being "political" . So I
do no regard determining a right as "political" to be
particularly useful: courts however have and do use that
distinction. When we compare "political" rights to the right
to vote or the right to public assembly or to speak one's own
mind the distinction of a right as "political" and thus
"unenforceable" reveals itself as an incoherent conclusion
which is dangerous to democracy.
sometimes called "economic" "social" or "cultural": I do not
regard those distinctions as particularly useful, but courts
regularly make those distinctions and so we must work with
While we could
call the right to strike a "political right" we could also
call it a basic right, a part of the economic constitution. As
we saw, the labor union most definitely contributes to
constituting the market economy by acting de facto as an
instance of state power for the determination of *117
working conditions. The
right to strike is internationally recognized: it is currently
a universal right, recognized, to varying degrees, in all
For that reason
it could be seen as a natural right, an expression,
ultimately, of the right of self preservation (just like every
other right). 165
On the other
hand, though all societies today may recognize some right of
workers to organize collectively, that right has not been
universally recognized historically, or even recognized at
all. So we could see the right to strike either as
inalienable, universal, and natural or instead as positive and
political. Which illustrates a general problem: it is
difficult to characterize fundamental rights correctly
precisely because they are abstract general principles of law.
In contrast to the
right to strike, the freedom of establishment is clearly a
positive right, not a natural one. Not all societies currently
recognize a right of foreign enterprises to establish
themselves on their soil. The right of establishment is a
basic right, constitutive of the economic order, but a
positive right. It concerns alienable economic rights, not
inalienable human rights. Both rights could be characterized
as alienable and positive not natural, both rights seem to be
constitutive of the State's economic order, but only the right
to strike could be characterized as currently universal. One
could make a plausible argument that the right to strike and
the freedom of establishment are hierarchically equivalent as
basic rights, aspects of the economic constitution as a matter
of positive law. However, if one determines that political
rights are superior to economic rights, and characterizes the
right to strike as a political right, then the right to strike
would enjoy the benefit of burdens of proof and of
presumptions in the proportionality inquiry. If one instead
determines political rights are nonjusticiable then instead
the freedom of establishment prevails.
Because the right
of workers to collectively organize is universally recognized
I would argue that the right to strike is hierarchically
superior to the right to establishment; in that case we should
see the actions of the enterprise as infringing the rights of
the workers, rather than in the way the court did, as
interfering with the freedom of establishment.
Let's change our
perspective now and think "intuitively," in a results *118
oriented fashion. There
are two possible outcomes. In one outcome, the right to strike
displaces the freedom of establishment. In the other outcome,
the freedom of establishment displaces the right to strike.
Where do those results take society? What do they lead to? I
have argued elsewhere that the cases of Viking and Laval are
in fact a perfect example of results-oriented thinking. The
court decided as it did, in my opinion:
1) to open Western
labor markets to Eastern European labor in order to
a) anchor Eastern
Europe's fledgling democracies.
b) to allow the
law of supply and demand to efficiently allocate surplus
Eastern European labor and Western European capital.
2) to break
national labor markets and rebuild them as a single European
labor market. 166
decision in Viking ultimately aims to contribute to the
construction of a single integrated European labor market in
order to guarantee workers' mobility and create economic
interdependence. It seeks those goals, ultimately, in order to
prevent wars for market share and resources - by creating
prosperity through interdependence and mutual understanding.
Given that desired
result--to find that the right of establishment was more
important in this case than the right to strike--the court
then would simply reason backwards through the variety of
possible arguments to reach that conclusion, and then pick the
most plausible inferential chain which would reach the desired
conclusion. The court could have reached the result, e.g.:
1) by finding the
right to strike does not exist in E.U. law (which is
2) by finding the
right to strike is less important here than the right to
establishment (which is plausible, but only justified by the
desired outcome of a single integrated labor market which
would be as productive as possible through free competition).
a) either by
calling the labor union a quasi/state actor
b) or by finding
direct horizontal effect c) or by finding indirect
(persuasive, interpretive) effect
The court in
Viking took 2b, though in fact an entire elaborate decision
tree could be established for Viking with these nodes:
CHARACTERIZATIONS OF THE RIGHTS AT STAKE IN VIKING
THE RIGHT TO STRIKE
Horizontal Direct Effect
Horizontal Indirect Effect (HIE)
Vertical Direct Effect (VDE)
Indirect Effect (VIE)
No Effect (NE)
NE (FREEDOM OF
[X] Marks the
spot: Viking found the treaty directly effective both
as to the right to
strike and as to the right of establishment; the direct
applicability of the treaty was a case of horizontal effect. 167
As shown, a grid
of 25 possible outcomes as to the relationship between the
right to strike and the freedom of establishment; plus four
steps of proportionality (rational means, permissible ends,
necessary, least restrictive means). Meanwhile as to effect
two key possibilities: the labor union and the enterprise
alike might be seen as instances of state power or, more
plausibly, as private law actors.
The decision in
Viking clearly was plausible. However, other outcomes could
have been plausibly reached. The decision is justified
precisely by the results, but could have been better justified
had the court consciously and conscientiously compared and
characterized the right to strike and the freedom of
establishment in some structured hierarchy of norms.
I have tried to
show several interrelated problems:
* the distinctions
between E.U. proportionality and U.S. interest balancing.
manipulability of the proportionality and balancing tests.
institutional strengths, weaknesses, and limits of the
* the problem of
* the problem and
possibility of hierarchizing general deductive principles as a
way to determine which right is more important in a case of
conflicting fundamental rights.
* the uses and
limits of effects based reasoning, i.e. results oriented legal
1. See, e.g., Alec S.
Sweet, All Things in Proportion? American Rights Doctrine and
the Problem of Balancing (2010) 30 Yale Fac. Scholarship Series
3, available at http://digitalcommons.law.yale.edu/fss_papers/30. *120
In the concrete
example of Viking, it seems that results oriented thinking
prevailed over structural thinking about the hierarchy of
norms before the ECJ. However, the hierarchization of norms
sketched out here most certainly was not argued before the
ECJ. Given the problem of justification and the desire for
foreseeability, i.e. legal certainty, it is not merely to be
hoped, but is even to be expected, that courts will figure
out ways to hierarchize competing fundamental rights in
order to be able to determine which right is being invaded
so as to correctly place the presumptions and burdens of
proof. How Viking might have been decided had the issue been
presented as a conflict between hierarchically different
rights is an interesting question. Whether future similar
cases litigating proportionality will seek to invoke a
hierarchy of norms, and if so how, is even more interesting.
I have suggested hierarchizing norms structurally in terms
of their priority of creation, and normatively in terms of
whether they inhere to the person or are alienable, whether
they are rights recognized in all contemporary societies,
and/or in all past societies, or instead are recognized only
in certain societies. An adequately organized hierarchy of
norms helps to resolve the related problems of judgment and
justification: namely, how should the judiciary decide
cases, and why. To that extent, I hope the ideas I present
here are some contribution to that process, which I regard
as one feature of contemporary legal thought still under
2. Eric Allen Engle, The
History of the General Principle of Proportionality: Dartmouth
3. See generally Eric
Allen Engle, Contemporary Legal Thought in International Law: A
Synopsis (Harv. Eur. L. Ass'n, Working Paper, 2010).
4. For a well-known
example of the confusion see Ronald Dworkin, Taking Rights
5. See, e.g., Ernst-Ulrich
Petersmann, Human Rights, International Economic Law and
"Constitutional Justice' 19/4 Eur. J. Int'l L. 769-798
(2008) available at http://www.ejil.org/pdfs/19/4/1661.pdf.
6. The globalization of
law - the creation of a de facto integrated global legal system
- results from the massive increase in trade and the ever
greater amount of comparative law, both of which resulted from
radically improved global telecommunication and transportation.
See Eric Allen Engle, Global Norm Convergence: Capital Markets
in U.S. and E.U. Law, 21 European Bus. L. Rev., 465-90 (2010)
(outcome, rationale and rule convergence in capital markets); Eric
Engle, Aristotelian Theory and Causation: The Globalization of
Tort Law, 2 GNLU L. Rev., 1-18 (2009) (outcome,
rationale and rule convergence in tort).
7. See Engle, supra note
2, at 7-10.
Engle, Law: Lex vs. Ius, 1 J. Juris, 31, 39 (2008)
available at http://www.jurisprudence.com.au/vol1_full.pdf.
9. For an example of
juridification in the international context see Eric
Engle, The Professionalization Thesis: The TBR, the WTO and
World Economic Integration,11 Currents: Int'l Trade L. J. 16
10. See, e.g.,
Gottfried Dietze, In defense of property 107-108 (1995); D.
Kelly Weisberg, Feminist legal theory: Foundations 404 (1993).
The case of Viking is an example of the clash of relativized
11. See, e.g., Duncan
Kennedy, Introduction to Legal History, http://duncankennedy.net/legal_history/index.html
(Stale? Wayback archive
link: Nov. 6, 2010).
C-438/05, Int'l Transp. Workers' Fed'n & Finnish Seamen's
Union v. Viking Line ABP & Ou Viking Line Eesti
E.C.R. I-10779, P75 ("[A] restriction on freedom of
establishment can be accepted only if [1 it pursues a legitimate
aim compatible with the Treaty and [2 is justified by overriding
reasons of public interest. But even if that were the case, it
would [3 still have to be suitable for securing the attainment
of the objective pursued and [4 must not go beyond what is
necessary in order to attain it.").
13. See id.
C-431/05, Laval un Partneri Ltd v. Svenska
Byggnadsarbetareforbundet (Laval), 2007
15. See, e.g., Sujit
Choudhry (ed.), The Migration of Constitutional Ideas 161
C-438/05, Viking, 2007 E.C.R. I-10779 P 32.
18. Id. P 37 (right to
strike subject to freedom of establishment).
19. Id. P 44.
20. Id. P 46.
21. See Ronald
Dworkin, Hard Cases, 88 Harv. L. Rev. 1057 (1975).
E. Connolly, The terms of Political Discourse 10, 36, 40
(Princeton Paperbacks, 3d ed. 1974).
23. See Cicero, De
Republica (51 B.C.), reprinted in 3 C.J. De Vogel, Greek
Philosophy: A Collection Of Texts With Notes And Explanations
177 (3d ed. 1973).
24. See, e.g., Eric
Engle, Aristotelian Theory and Causation: The Globalization of
Tort Law, 2 GNLU L. Rev. 1-18 (2009) (norm convergence is
the tendency in contemporary legal thought to see converging
outcomes, rationales, and substantive legal rules. It is the
result of greatly intensified trade and instant global
telecommunication. More international transactions than ever and
fewer communication barriers than ever result in more frequent
usage of comparative law by courts and practitioners).
25. See generally,
Ronald Dworkin, Taking Rights Seriously (Harvard U. Press 1978).
26. Eric Allen Engle,
New Technologies and the Fourth Amendment, Harv. J. L. &
Tech, Digest Comment, (Dec. 29, 2009) available at http://jolt.law.harvard.edu/digest/privacy/digest-comment-new-technologies-and-the-fourth-amendment#_edn1.
27. "In engaging in
these essentially ad hoc, factual inquiries, the Court's
decisions have identified several factors that have particular
significance. The economic impact of the regulation on the
claimant and, particularly, the extent to which the regulation
has interfered with distinct investment-backed expectations are,
of course, relevant considerations." See Goldblatt v. Hempstead,
369 U.S., 594 (1962). "So, too, is the character of the
governmental action. A "taking' may more readily be found when
the interference with property can be characterized as a
physical invasion by government," see, e. g., United States v.
U.S. 256 (1946), "than when interference arises from some
public program adjusting the benefits and burdens of economic
life to promote the common good." Penn
Cent. Transp. Co. v. City of New York,438 U.S. 104, 124,
(1978), "[t]he cases state or imply that a physical
invasion is subject to a balancing process, but they do not
suggest that a permanent physical occupation would ever be
exempt from the Takings Clause."
Penn Central Transportation
Co. contains one of the most complete discussions of the
Takings Clause. The Court explained that resolving whether
public action works a taking is ordinarily an ad hoc inquiry
in which several factors are particularly significant-the
economic impact of the regulation, the extent to which it
interferes with investment-backed expectations, and the
character of the governmental action (438 U.S., at 124). The
opinion does not repudiate the rule that a permanent physical
occupation is a government action of such a unique character
that it is a taking without regard to other factors that a
court might ordinarily examine." Loretto v. Teleprompter
Manhattan CATV Corp. 458 U.S. 419, 432, (1982).
Const. amend. IV. ("The right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.").
29. Id. amend. V. ("No
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without
30. Delaware v. Prouse,
440 U.S. 648, 654 (1979) (whether a search is reasonable "is
judged by balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of legitimate
31. See Penn Central
Transp. Co. v. City of New York, 438
U.S. 104 (1978).
32. See, e.g., LeBoon
v. Lancaster Jewish Comty. Center Ass'n, 503
F.3d 217, 226-227 (3d Cir. 2007). ("It is apparent from
the start that the decision whether an organization is
'religious' for purposes of the exemption cannot be based on its
conformity to some preconceived notion of what a religious
organization should do, but must be measured with reference to
the particular religion identified by the organization. Thus not
all factors will be relevant in all cases, and the weight given
each factor may vary from case to case. For instance, although
the absence of a proselytizing effort may be a factor under
certain circumstances, it will have no significance with a
non-proselytizing religion-or thus with a determination whether
a Jewish organization is religious.").
33. See e.g., "In both
Webb's and Sperry the Court engaged in an implicit weighting of
factors, similar to that undertaken in a case expressly
employing ad hoc analysis, to determine the reasonableness of
the appropriations involved." Washington Legal Found. v. Texas
Equal Access to Justice Found 293
F.3d 242, 250 (C.A.5 (Tex.), 2002).
34. See Piper Aircraft
Co. v. Reyno, 454
U.S. 235, 257 (1981) (for an example of interest balancing
in the context of procedure).
35. Ironically, in at
least one case the U.S. Supreme Court has used "balancing the
equities" to determine whether the assignment of the burden of
proof to the defendant was just. "In determining whether the
placement of the burden of proof is fundamentally unfair,
relevant considerations include: whether the government has
superior access to evidence; whether the defendant is capable of
aiding in the garnering and evaluation of evidence on the matter
to be proved; and whether placing the burden of proof on the
government is necessary to help enforce a further right, such as
the right to be presumed innocent, the right to be free from
self-incrimination, or the right to be tried while competent.
After balancing the equities in this case, I agree with the
Court that the burden of proof may constitutionally rest on the
defendant." Medina v. California, 505 U.S. 437, 455 (O'Connor,
Souter, concurring, 1992).
incumbit probatio qui dicit, non qui negat." Patterson v.
U.S. 550, 597 (1848) (He who affirms a position must bear
the burden of proving it, not he who denies it.).
37. Mathews v.
Eldridge, 424 U.S. 319, 335 (1976) (in the due process context,
the U.S. Supreme Court set out the multi-factor interest
balancing test as follows: the "identification of the specific
dictates of due process generally requires consideration of
three distinct factors. First, the private interest that will be
affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.").
38. See, e.g., Nadine
Strossen, The Fourth Amendment in the Balance: Accurately
Setting the Scales Through the Least Intrusive Alternative
Analysis, 63 N.Y.U. L. Rev. 1173 (1988).
39. See generally T.
Alexander Aleinikoff, Constitutional Law in the Age of
Balancing, 96 Yale L.J. 943 (1987).
40. See Lawrence B.
Solum, Legal Theory Lexicon: Balancing Tests, Legal Theory Blog
(Aug. 23, 2009), http://lsolum.typepad.com/legaltheory/2009/08/legal-theory-lexicon-balancing-tests.html.
41. Engle, supra note
42. Eric Allen Engle, When is Fair Use Fair?: A Comparison of
E.U. And U.S. Intellectual Property Law, 15 Transnational
Lawyer 187, 197-198 (2002).
43. Duncan Kennedy,
From the Will Theory to the Principle of Private Autonomy: Lon
Fuller's "Consideration and Form," 100 Columbia L. Rev. 94 96,
163 (2000), available at http://duncankennedy.net/documents/From%20the%20Will%20Theory%20to%20the%20Principle%20of%20Private%20Autonomy.pdf
44. See, Eric Allen
Engle, Lex Naturalis, Ius Naturalis: Law as Positive Reasoning
& Natural Rationality 207, 243 (2010).
45. See id. at 209.
46. See Korematsu v.
United States, 323
U.S. 214 (1944) ("It should be noted, to begin with, that
all legal restrictions which curtail the civil rights of a
single racial group are immediately suspect. That is not to say
that all such restrictions are unconstitutional. It is to say
that courts must subject them to the most rigid scrutiny").
47. Some U.S. cases
even use the word "proportionality". See, e.g., Kazmier v.
United States, 225 F.3d 519, 525 (5th Cir. 2000).
48. See, e.g., Kimel v.
Florida Board of Regents, 528
U.S. 62, 81 (2000).
49. See, e.g.,
Minnesota v. Clover Leaf Creamery Co., 449
U.S. 456, 470, n. 12, (1981); Western & Southern Life
Ins. Co. v. State Bd. of Equalization, 451
U.S. 648, 668 (1981); Dep't of Agric. v. Moreno, 413
U.S. 528, 533 (1973).
50. Heller v. Doe by
Doe, 509 U.S. 312, 321 (1993) (equal protection clause).
51. Sabri v. United
States, 541 U.S. 600, 605 (2004) (means ends rationality
required for just use of elastic clause).
52. See, e.g., Western
& Southern Life Ins. Co. v. State Bd. of Equalization, 451
U.S. 648, 668, (1981).
53. McCulloch v.
Maryland, 17 U.S. 316 (1819).
54. "All government
racial classifications must be analyzed by a reviewing court
under strict scrutiny." Adarand Constructors, Inc. v. Pa, 515
U.S. 200, 227. But not all such uses are invalidated by
strict scrutiny. Race-based action necessary to further a
compelling governmental interest does not violate the Equal
Protection Clause so long as it is narrowly tailored to further
that interest. See e.g., Shaw v. Hunt, 517
U.S. 899, 908 (1996); Grutter v. Bollinger, 539 U.S. 306,
55. "Under strict
scrutiny, the Government must prove that applying BCRA to WRTL's
ads furthers a compelling interest and is narrowly tailored to
achieve that interest." See First Nat'l Bank of Boston v.
Bellotti, 435 U.S. 765, 786 (1978) ("Especially where, as here,
a prohibition is directed at speech itself, and the speech is
intimately related to the process of governing ... "the burden
is on the government to show the existence of [a compelling]
interest" (footnote omitted))." Fed. Election Com'n v. Wisconsin
Right To Life, Inc. 551
U.S. 449, 464-65 (2007).
56. "The end being
required, it has been deemed a just and necessary implication,
that the means to accomplish it are given also; or, in other
words, that the power flows as a necessary means to accomplish
the end." Prigg v. Com. of Pennsylvania, 41
U.S. 539, 619 (1842). (Implied federal powers must be
necessary means to permissible ends); M'Culloch v. Maryland, 17
U.S. 316, 357-58 (1819).
57. Engle, supra note
58. See Aristotle,
Nicomachean Ethics ("[W]e do not allow a man to rule, but
rational principle, because a man behaves thus in his own
interests and becomes a tyrant.").
59. "Because the
requirements of due process are 'flexible and cal[l] for such
procedural protections as the particular situation demands,'
Morrissey v. Brewer, 408
U.S. 471, (1972), we generally have declined to establish
rigid rules and instead have embraced a framework to evaluate
the sufficiency of particular procedures. The framework,
established in Mathews v. Eldridge, 424
U.S. 319, 481 (1976), requires consideration of three
60. See, e.g., Shanks
v. Dressel, 540
F.3d 1082, 1088 C.A.9 (Wash 2008); Artway v. Attorney
General of State of N.J. 81
F.3d 1235, 1259 C.A.3 (N.J.), 1996.
"First, the private interest
that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the
Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.' Id., at 335,
96 S.Ct. 893; Wilkinson v. Austin, 545
U.S. 209, 224
61. "The concept of
"substantive due process" has long since earned its place as a
crucial constraint on the untrammeled power of those who govern
and a vital source of protection for the dignity and autonomy of
those who are governed. Yet at the same time that there is
substantial evidence of a slow but growing acceptance by the
Supreme Court of the role of the doctrine in our constitutional
structure, the Court continues sporadically to generate rules
that seem to undermine its very legitimacy, rules that appear to
reflect continuing deep discomfort with the project of
substantive due process." See, e.g., Peter J. Rubin, Square Pegs
and Round Holes: Substantive Due Process, Procedural Due
Process, and the Bill of Rights, 103 Colum. L. Rev. 833, 833
(May, 2003). Libertarians reject substantive due process in part
for the obvious reason that due process is procedural and that
the United States is a democracy, not a judicial dictatorship.
See generally, Raoul Berger Government by Judiciary: The
Transformation of the Fourteenth Amendment, Foreword by Forrest
McDonald (2d ed, Indianapolis: Liberty Fund, 1997) available at
62. See Case T-125/96,
Boehringer Ingelheim Vetmedica GmbH v. European Union, 1999
E.C.R. 1-008 P 73 ("The principle of proportionality has been
recognised in settled case-law as one of the general principles
of Community law. According to that principle, measures of the
Community institutions must not go beyond what is appropriate
and necessary for achieving the objectives legitimately pursued
by the measure in question, it being understood that, where
there is a choice between several appropriate measures, recourse
must be had to the least restrictive and that the disadvantages
caused must not be disproportionate to the aims pursued.").
63. Case C-431/05,
Laval, 2007 E.C.R. I-11767.P 99.
64. Id. P 101.
65. See generally
Engle, supra note 2.
66. See Ronald
Coase, The Problem of Social Cost, 3 J. L. & Econ. 1-44
(1960), available at http://www.sfu.ca/~allen/CoaseJLE1960.pdf.
67. See, e.g., Eastern
Enterprises v. Apfel 524
U.S. 498, 524. 118 S.Ct. 2131 (U.S.Mass., 1998)
("legislative Acts adjusting the burdens and benefits of
economic life come to the Court with a presumption of
constitutionality ... the burden is on one complaining of a due
process violation to establish that the legislature has acted in
an arbitrary and irrational way.").
68. "Deciding the
appropriate standard of review is crucial, because the ultimate
decision in a case is often shaped by the standard applied."
U.S. v. Brandon 158 F.3d 947, 956 (C.A.6 (Ohio) 1998).
69. For an initial
foray into categorically structuring fundamental
(human)(constitutional) rights (including general principles of
law; yes, the terminology is that prolix) see Eric Allen Engle.
Taking the Right Seriously: Hohfeldian Semiotics and Rights
Discourse, 3 The Crit 84-107 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424691.
70. See, e.g., Case
C-438/05, Viking, 2007 E.C.R. I-10779 P 3.
71. Id. P 39.
72. See id. P 79("[T]he
rights under the provisions of the Treaty on the free movement
of goods, persons, services and capital" - any hope for the
distinction on the basis of fundamental inalienable personal or
political right (the right to strike) versus alienable positive
basic freedoms would not be met by Viking. One can, however,
distinguish the right to strike from the freedom of
establishment in exactly that manner, and that would
incidentally place the right to strike on a hierarchically
superior level to the freedom of establishment. Laval, likewise,
assimilates the basic economic freedoms of the treaty into
fundamental (inalienable) human/constitutional rights under the
general principle of proportionality. See Laval, supra note 8, P
101 (fundamental freedom assimilated into general principle), P
105 (the basic four freedoms equated to rights)).
73. See generally
Engle, supra note 3.
74. Eric Allen Engle,
Taking the Right Seriously: Hohfeldian Semiotics and Rights
Discourse, 3 The Crit 84-107 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424691
(suggesting a typology of rights).
75. Coase, supra note
78. Case C-438/05,
Viking, 2007 E.C.R. I-10779 P 2.
treaties are not presumed to create rights that are privately
enforceable. See Head Money Cases, 112
U.S. 580, 598-99 (1884); Foster v. Neilson, 27
U.S. 253, 314(1829). Courts will only find a treaty to be
self-executing if the document as a whole evidences an intent to
provide a private right of action. See United States v.
F.2d 1060, 1066 (11th Cir. 1991); Diggs v. Richardson, 555
F.2d 848, 851 (D.C. Cir.1976); Goldstar v. United States 967
F.2d 965 (4th Cir.1992).
80. Case C-438/05,
Viking, 2007 E.C.R. I-10779 P 44.
81. Id. P 75
82. Id. P 43-44.
83. Id. P 90.
84. See Engle, supra
87. Engle, supra note
3, at 84-107.
88. Case C-438/05,
Viking, 2007 E.C.R. I-10779 PP 43-47, 68.
89. Id. P 27.
90. Id. P 56.
91. Id. P 32.
92. Id. P 66.
93. See, e.g., Lugar v.
Edmondson Oil Co., Inc. 457
U.S. 922, 931 (1982). ("private party's joint
participation with a state official in a conspiracy to
discriminate would constitute both 'state action essential to
show a direct violation of petitioner's Fourteenth Amendment
equal protection rights' and action 'under color' of law for
purposes of the statute.'" (internal citation omitted)).
94. See, e.g., Cornejo
v. County of San Diego, 504
F.3d 853, 856 (9th Cir. 2007) ("For any treaty to be
susceptible to judicial enforcement it must both confer
individual rights and be self-executing.").
95. See generally, Eric
Allen Engle, Third Party Effect of Fundamental Rights
(Drittwirkung), 5 Hanse L. Rev. 165-73 (2009).
97. Walter van Gerven,
General Course of Rights and Remedies in the Enforcement of
European Community Law Before National Courts, in AEL Vol. III
Book 1, 251(2001).
Joerges, The Market without a State? States without Markets?
Two Essays on the Law of the European Economy, (EUI Working
Paper, 1996) available at http://eiop.or.at/eiop/texte/1997-019.
99. On the minimal
state see generally, Robert
Nozick, Anarchy, State, and Utopia (1974). Although I
disagree with many of Nozick's points, he is canonical in
minimalist state theory.
100. See, e.g., Miriam
Aziz, The Impact of European Rights on National Legal Cultures
101. Case C-438/05,
Viking, 2007 E.C.R. I-10779 P 43.
102. Id. PP 34-35.
103. See, e.g., Liza
Lovdahl Gormsen, A Principled Approach to Abuse of Dominance
in European Competition Law 98 (2010).
104. Masahiko Aoki,
Toward a Comparative Institutional Analysis 164 (2001).
105. Id. P 35.
106. Id. P 34.
107. Id. P 68.
108. Id. P 66.
109. Case C-26/62, NV
Algemene Transport- en Expeditie Onderneming van Gend & Loos
v. Netherlands Inland Revenue Admin., (Feb. 5, 1962), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61962J0026:EN:HTML;
See generally, Eric Allen Engle, Constitutive Cases: Marbury v.
Madison Meets Van Gend & Loos 5 Hanse Law Rev. 33-46 (2009).
110. Viking, supra
note 88, P 66.
111. Viking, supra
note 88, P 27.
Kennedy, The Stages of the Decline of the Public/Private
Distinction, 130 U. Pa. L. Rev. 1349 (1982).
113. See generally Duncan
Kennedy, The Stakes of Law, or Hale and Foucault!, 15 Legal
Studies Forum 327 (1991)
114. Engle, supra note
109, at 165-73.
115. Engle, supra note
116. For a brilliant
exposition in English of the autonomy of branches of civilianist
Etienne Picard, The Public Private Divide in French law
Through the History and Destiny of French Administrative Law
in The Public-Private Law Divide: Potential For Transformation?,
117. See Engle, supra
118. "Die Wuerde des
Menschen ist unantastbar." - "Human dignity is inviolable."
Grundgesetz Fur Die Bundesrepublik Deutshland [Grundgesetz] [GG]
[Basic Law], 1949, BGBI. I (Ger.).
119. See Eric Allen
Engle, The Transformation of the International Legal System: The
Post-Westphalian Legal Order, 23 Quinnipiac L. Rev. 23 (2004).
120. U.S. v.
Struckman, 611 F.3d 560, 576 (9th Cir. 2010).
Allen Engle, Law: Lex vs. Ius, 1 J. Jur. 31, 45 (2008);
Stephen Craig Pirrong, The Economics, Law, and Public Policy of
Market Power Manipulation 225 (1996).
122. See generally Eric
Allen Engle, A Viking We Will Go: Neo-Corporatism and Social
Europe 11/6 German L. J., 633-652 (2010)
124. See, e.g.,
Viking, supra note 80, P 72; Laval, supra note 63, P 98.
reasoning" looks to the goals of the law, i.e. policy, as well
as to the teleology of the law, i.e. the natural and structural
ends to which the law seeks. See Eric Allen Engle, Lex
Naturalis, Ius Naturalis: Law as Positive Reasoning &
Natural Rationality 420 (2010).
126. Laval, supra note
v. Filburn, 317 U.S. 111, 127-28 (U.S. 1942).
129. Eric Allen Engle,
Environmental Protection as an Obstacle to Free Movement of
Goods: Realist Jurisprudence in Articles 28 and 30 of the E.C.
Treaty, 27 J.L. & COM. 113135 (2008).
130. See also Engle,
supra note 125, at 405.
131. See, e.g.,
William Siler, James J. Buckley, Fuzzy Expert Systems and Fuzzy
Reasoning 24 (2005).
134. The Court's self
criticism of backward chaining is usually expressed as "result
oriented" or "rationalization" e.g., "it does not surprise me,
and should surprise no one, that the Court has chosen today to
revise the standards of stare decisis set forth in Casey. It has
thereby exposed Casey's extraordinary deference to precedent for
the result-oriented expedient that it is." Lawrence v. Texas,
539 U.S. 558, 591 (2003) (O'Connor, concurrence).
Philip Golding, Legal Reasoning 13 (2001).
136. Id. at 22.
137. See, e.g.,
Wolfram MathWorld, Tautology, at http://mathworld.wolfram.com/Tautology.html;
Kiyosi ItÃ´, Encyclopedic Dictionary of Mathematics, p. 1554
(2000); see also Engle, supra 125, at 315.
138. Thomas Aquinas,
139. The use of the
responsa format by the ECJ was never so disciplined as we see in
the work of Aquinas. However, one can see the method in the
cases of the ECJ, especially the earlier ones, likely under the
stronger influence of French jurists. See, e.g., Case
9/55, N. V. Kolenmijnen van Beeringen, N.V. Kolenmijnen van
Houthalen, N. V. Kolenmijnen van Helchteren en Zolder v High
Authority of the European Coal and Steel Community
15-57, Compagnie des Hauts Fourneaux de Chasse v High
Authority of the European Coal and Steel Community
(12/VI/1958), or for that matter Viking itself.
Pearl, Heuristics: Intelligent Search Strategies for Computer
Problem Solving, vii (1983); Stuart
J. Russell & Peter Norvig, Artificial Intelligence: A
Modern Approach (2d ed. 2003).
141. Reductio ad
Absurdum,Internet Encyclopedia of Philosophy (May 1, 2005), http://www.iep.utm.edu/reductio/.
142. Steven George
Krantz, Handbook of Logic and Proof Techniques for Computer
Science 113 (2002).
M. Gabbay, Rudolf Kruse (eds.), Handbook of Defeasible
Reasoning and Uncertainty Management Systems, 283 (2000);
P. Botha, The Conduct of Linguistic Inquiry: a Systematic
Introduction to Generative Grammar 283-85 (1981).
145. Nicholas Rescher,
Wishful Thinking and Other Philosophical Reflections 66 (2009).
147. Id. at VI 6, VI
149. See, e.g., Shihui
Han and Fang Fang, Linking Neural Activity to Mental Processes,
2/4 Brain Imaging and Behavior, 242-48 (2008). See also, T Riga,
A. Cangelosi, & A. Greco, (2004) Symbol grounding transfer
with hybrid self-organizing/supervised neural networks. In
IJCNN04 International Joint Conference on Neural Networks.
150. See generally,
e.g., Christopher Ariel Shaw, Jill C. McEachern, Jill McEachern,
Toward a Theory of Neuroplasticity (2000).
A. Riley & M.T. Turvey, Book Review: Dynamics in Action:
Intentional Behavior as a Complex System, 114 Am. J. of
Psychol., 160, 163 (2001); Colin W. G. Clifford, Gillian
Rhodes, Fitting the Mind to the World 246 (2005).
152. See, e.g., Ruth
Masters, Counseling Criminal Justice Offenders 115 (2d ed.
153. Michael R.W.
Dawson, Understanding Cognitive Science 38 (1998).
154. See, e.g.,
Stephen G. Lomber & Jos J. Eggermont, Reprogramming the
Cerebral Cortex: Plasticity Following Central and Peripheral
Lesions 257-72 (2006).
155. Georg Dorffner,
Konnektionismus in Artificial Intelligence und
Kognitionsforschung, 75-77 (1990); John Dinsmore (ed.), The
Symbolic and Connectionist Paradigms: Closing the Gap 113
Nicomachean Ethics bk. VI, chps. 6, 11 (c. 384 B.C.E.).
157. See generally Neil
A. Stillings et al Cognitive Science: An Introduction (2d
158. For an in-depth
examination of this typology see Engle, supra note 74.
159. Eric Allen Engle,
Law: Lex vs. Ius, 1 J. Jur. 31-49 (Aron Ping D'Souza et al.
160. Eric Allen Engle,
Lex Naturalis, Ius Naturalis: Law as Positive Reasoning &
Natural Rationality 391 (Donna M. Lyons et al. eds., 2010).
161. Id. at 407.
Joachim Friedrich, Demokratie als Herrschafts-und Lebensform
163. See Eric Allen
Engle, Universal Human Rights: A Generational History, 12 Ann.
Surv. Int'l & Comp. L. 219 (2006).
Case C-438/05, Viking, 2007 E.C.R. I-10779 P 2.
165. Compare Thomas
Hobbes, The Leviathan (1660) (That was Hobbe's view: I am not
sure I share it. Even if all rights are ultimately extensions of
the right to life, does that help us hierarchize them? Further,
Aristotle would argue that the state exists not merely to secure
the means to live, but also to attain a much higher end - the
good life for all. Survival rights are anterior yet also
inferior to self-actualization: they are necessary but
insufficient). See also (*)
(c. 384-322 B.C.E).
166. See Eric Allen
Engle, A Viking We Will Go! Neo-Corporatism and Social Europe,
11 German L. J. 633-52 (2010).
C-438/05, Viking, 2007 E.C.R. I-10779 P 66.