A policy oriented search for basic European Values

  • Ivan Pajden

Izvleček

The primary problem of the paper can be formulated by the following question: how can one establish – in the sense of rec-ognizing and/or creating – basic values of the European Conven-tion on Human Rights and Fundamental Freedoms (hereinafter: ECHR, Convention)? The answer is encapsulated in two claims. The first is that basic values of the ECHR can be established more fruitfully by policy oriented jurisprudence as adapted to Civil Law than by conventional Civil Law scholarship. The second is that under both past and foreseeable conditions one cannot establish distinctly European basic values of the ECHR other than values of the ECHR itself. The secondary problem is a common misunderstanding of Harold D. Lasswell and Myres S. McDougal’s policy oriented juris-prudence or configurative jurisprudence (hereinafter: POJ). The appraisal of POJ is wanting in three respects. First, although appli-caton of law inevitably involves creation, conventional Civil Law scholarship is concerned primarily with application of law. Hence POJ, which is focused upon law-making, should be prima facie relevant even if it required simplification, and its wider frame-work, that is, Lasswell’s policy sciences, were obsolete. Secondly, POJ could not have become a communicable doctrine since in its heyday in the 1960s and 1970s it was applied on the basis of fragments of a theory and when the fragments were finally published together in the 1990s Lasswell and McDougal had no students that could apply it or adapt it for application. Thirdly, the disappear-ance of POJ is explicable also by a change of academic culture.

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2019-06-22