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Gunnar Beck

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Gunnar Beck is a German EU and constitutional lawyer, legal philosopher and publicist.

Professional career

Gunnar Beck read politics, philosophy, law and economics in Germany and Great Britain and completed his doctorate in political and legal philosophy under the supervision of Professor Sir Isaiah Berlin in 1996 at Nuffield College, Oxford. He subsequently worked for the international law firm Herbert Smith and as Deputy Legal Adviser (EU law) at the House of Commons of the United Kingdom Parliament. He currently combines academic work with legal practice as a specialist EU lawyer.

Work

In Fichte and Kant on Freedom, Rights, and Law (2008) Beck argues that, contrary to the received view, Kant fails to demonstrate how political liberalism is logically connected and deduced from the doctrine of autonomy, whilst Fichte anticipates many of Hegel’s criticisms of Kant. Starting from a notion of the self which is constituted inter-subjectively Fichte ultimately rejects a notion of individual rights as absolute standards and constraints on legitimate political action. If the self is constituted inter-subjectively and develops historically in interaction with others, rights become the adaptable enabling conditions of moral, cultural and political progress. Fichte’s theory of rights, Beck argues in the Chinese edition to his book, is particularly relevant to sophisticated non-liberal societies like China where the ruling party has long rebutted Western criticism of human rights violations on the grounds that the ‘first right’ of every Chinese which trumps all others, is the right to a basic standard of living. For Fichte the first and fundamental right of all individuals is the right to the conditions of human perfectibility which include certain propitious material or social living conditions which are essential to basic human flourishing in circumstances of limited benevolence. In common with Hegel Fichte further thought that altruism and social solidarity could flourish only in communities based on common culture and shared historical destiny. Fichte may therefore not only be regarded as one of the fathers of nationalism but likewise merits attention as an early advocate of the doctrine that socialism is only possible in one country and that, in that sense, socialism is closely linked to nationalism. As a pre-Revolutionary thinker, by contrast, Kant, unlike Fichte or Hegel, never accommodated the notion of the nation as a culturally and linguistically defined entity within his broader moral and political theory, although his later writings on history are more sociologically and anthropologically sensitive than commonly acknowledged.

In The Legal Reasoning of the Court of Justice of the EU (2013) Beck argues that the problem of legal uncertainty is ultimately incapable of judicial or even doctrinal resolution. At the primary level of legal rules Beck identifies three basic sources of legal uncertainty: linguistic vagueness, value pluralism and norm conflict, and precedent instability. Primary legal uncertainty gives rise to the need for judicial interpretation. Judges do not openly decide in accordance with political or personal preference; they are expected to justify their decision by reference to interpretative topoi or arguments, which fall into three main categories: linguistic, systemic and purposive, in addition to precedents. There is no overarching rule or formula governing the application of these topoi, e.g. which type of argument prevails in which circumstances. Judges, in consequence, enjoy considerable discretion in the application of the available topoi and over which topos should enjoy primacy in which sets of circumstances.

The lack of any methodological certainty in the application of the interpretative criteria ultimately means the problem of legal uncertainty is incapable of complete resolution. As there is no agreed method of judicial reasoning, legal reasoning cannot be scientific but must remain heuristic. Against the background of his general analysis of the nature and limits of legal reasoning Beck demonstrates that vagueness, norm conflict and precedent instability are pervasive features of European Union law. The whole second part of Beck’s book is devoted to an extensive review of the Court of Justice’s case law. Beck concludes that the Court resolves the high degree of legal uncertainty in a broadly communautaire or integrationist direction. The key to the Court of Justice’s restrained integrationism, according to Beck, is its cumulative interpretative approach by which it approaches interpretative problem from the combined perspective, and justifies its decisions in terms of the cumulative weight, of literal, systemic and purposive criteria. Purposive and especially meta-telelogical considerations assume greater weight in the Court of Justice’s legal reasoning than in the decisions of most higher national courts. The added weight given to teleology generally favours a more rather than less integrationist judicial response to most interpretative questions. In that sense the Court of Justice has been an important motor of EU integration, although Beck qualifies his conclusion in several respects: i. the EU treaties and secondary legislation are characterised by a high degree of vagueness and value pluralism which embody political compromises between member states whereby they effectively delegated key questions to the Court of Justice - such delegation of political questions to judicial authorities is dubious from a democratic point of view, ii. in areas of political and budgetary sensitivity the Court of Justice often shows limited or specific deference to member states on the very specific issues in the case, whilst endorsing a broadly integrationist general principle of law which affords for flexible application especially through the dummy standard of the proportionality principle, and iii. national constitutional courts often follow a similarly textually ‘creative’ and politically deferential interpretative approach in politically charged cases involving issues of EU integration or budgetary and social policy issues in which the political executive has invested considerable political capital. Legal reasoning, Beck concludes, is ordinary legal reasoning in extraordinary language, and judicial decision-making is subject not to rules, but to regularities – political as well as psychological, rhetorical no less than methodological regularities. Elsewhere, Beck has argued that for these reasons the rule of law always remains a 'fair weather phenomenon'.

Gunnar Beck has written widely on the legal and economic aspects of the euro crisis. For Beck the crisis has brought to the fore an unprecedented breakdown in the rule of law and representative democracy in post-WW II Europe, which is epitomized by the only thinly disguised political role played by central banks and the EU and national courts. Under its President Mario Draghi the European Central Bank, with the tacit support of eurozone governments, has openly disregarded the limits of its mandate which is confined to monetary policy. With its 'cheap money' policies the ECB incrementally expropriates savers and fuels asset price bubbles corporate short-termism and excessive bonus payments in the investment banking sector. For Beck the delegation of far-reaching political and economic policy-making functions to soi-disant independent institutions and central bankers who, like Draghi, have longstanding links with leading US investments banks notably Goldman Sachs, together with the hollowing out of democratic processes and judicial deference in the highest national and supra-national courts, are key features of oligarchic democracy which is rapidly becoming the established form of government in Western Europe and North America.

Beck has also criticised the judicial response to the euro crisis. In a series of judgment the Court of Justice of the EU and the German Constitutional Court have upheld the establishment of a permanent euro zone financial bail-out fund by the member states and a multi-trillion government and corporate bond-buying programme by the European Central Bank which are contrary to Article 123 and 125 of the Treaty on the Functioning of the European Union (TFEU). He argues that whilst there are many cases where treaties and legislation display a degree of linguistic uncertainty which grants de facto discretion to courts which is an undesirable but sometimes inevitable feature of law-making, Article 125 TFEU and Article 123 TFEU together with Council Regulation 3603/93 do not fall into this country. Art. 125 clearly prohibits the provision of mutual financial assistance amongst members of the euro zone or the establishment of aid mechanisms whereby one or more euro members assume liability for the debts of others, whilst Art. 123 in conjunction with Regulation 3603/93 was included in the Treaties to prevent the ECB from buying government bonds if such purchases may ease the refinancing conditions of indebted euro zone governments. In upholding the legality of both the establishment of a mutual financial assistance fund and the ECB's multi-trillion quantitative easing programme, the German Constitutional Court and the Court of Justice of the EU have exceeded the legitimate limits of judicial discretion which are defined by imprecision and vagueness in the underlying laws and adopted a contra legem interpretation of the Treaties, i.e. an interpretation which runs counter to the literal meaning of the Treaty. They have taken the crucial step from legitimate legal interpretation to judicial law-breaking.

Beck who is an advocate of "organic" integration which should not have a pre-determined outcome, argues that the top-down approach to ‘ever closer union’ undermines self-government at every level of politics and reinforces the long-term trends towards electoral apathy and towards a debased consumer conception of the citizen. It reinforces many of the degenerative political and social trends in contemporary Western political societies, notably the susceptibility of governments to excessive and non-transparent lobbying, especially by the financial sector, the dismantlement of the post-war Western European model of the social market economy, and the erosion of traditional de-centralized and historically evolved foundations of social solidarity and the hollowing out of residual forms of representative democracy and meaningful political participation. Further EU integration will bring Western and Central Europe closer to the consumerist homogenization of the United States, but without the early self-reliance, dynamism and even idealism of the Americans.

In addition to his legal and political scholarship, Gunnar Beck provides legal advice and representation in matters of EU law. He has been involved in select recent EU General Court, Court of Justice and UK Supreme cases involving innovative EU legal points or the division of competences between national and Union law.

Works

Authored books

  • Beck, Gunnar (2013). The Legal Reasoning of the Court of Justice of the EU. Oxford: Hart Publishing.
  • Beck, Gunnar (2008). Fichte and Kant on Freedom, Rights and Law. Lexington Books.

Book chapters

  • Beck, Gunnar (2008). "Autonomy, history and natural law in the practical philosophy of Immanuel Kant". In: Jahrbuch für Recht und Ethik Vol. 16 [Annual Review of Law and Ethics]. Berlin: Duncker & Humblot.
  • Beck, Gunnar (2007). 'Legal Certainty, the Common Law Tradition, Resistance to Harmonization and Convergence in the European Community Legal Order.' In: Backer, L. C., (ed.), Harmonizing Law in an Era of Globalization. Convergence, Divergence, and Resistance.Carolina Academic Press, pp. 241–278.
  • Beck, Gunnar (2007). 'The Normative and Conceptual Contestability of Human Rights.' In: Byrd, B. S. and Hruschka, J. and Joerden, J. C., (eds.), Jahrbuch fuer Recht und Ethik. Annual Review of Law and Ethics. Band 15. Duncker & Humblot, pp. 659–698.
  • Beck, Gunnar and Cata, Larry (2006) 'The Common Law Tradition, the English Courts, and the Application of European Community Law in Harmonzing Law in an Era of Globilzation - Convergence, Divergence and Resistance.' In: Cata, Larry, (ed.), UNSPECIFIED Carolina Academic Press.

Journal articles

  • Beck, Gunnar (2016) 'Natural law and the moral void at the heart of securalised human rights law.' Journal of Comparative Law. (Forthcoming)
  • Beck, Gunnar (2014) 'The Legal Reasoning of the Court of Justice of the EU - A Reply to Michal Bobek.' European Law Review, 2014 (4). pp. 579–582.
  • Beck, Gunnar (2014) 'The Court of Justice, the Bundesverfassungsgericht and Legal Reasoning during the Euro Crisis: The Rule of Law as a Fair-Weather Phenomenon.' European Public Law, 20 (3). pp. 539–566.
  • Beck, Gunnar (2014) 'The Court of Justice, legal reasoning, and the Pringle Case - Law as the continuation of politics by other means.'European Law Review (2). pp. 234–250.
  • Beck, Gunnar (2013) 'The Legal Reasoning of the Court of Justice and the euro crisis – the flexibility of the Court’s Cumulative Approach and the Pringle Case.' Maastricht Journal of European and Comparative Law, 20 (4). pp. 645–658.
  • Beck, Gunnar (2013) 'Review Article - The Limits of Legal Reasoning and the European Court of Justice, by Gerard Conway, Cambridge: Cambridge University Press, 2012.' Common Market Law Review, 50 (3). pp. 896–898.
  • Beck, Gunnar (2011) 'The Lisbon Judgment of the German Constitutional Court, the Primacy of EU Law and the Problem of Kompetenz-Kompetenz: A Conflict between Right and Right in Which There is No Praetor.' European Law Journal, 17 (4). pp. 470–494.
  • Beck, Gunnar (2008) 'Human Rights Adjudication under the ECHR between Value Pluralism and Essential Contestability.' European Human Rights Law Review (2). pp. 214–244.
  • Beck, Gunnar (2008) 'The Mythology of Human Rights.' Ratio Juris, 21 (3). pp. 312–347.
  • Beck, Gunnar (2008) 'Legitimation Crisis, Reifying Human Rights and the Norm-Creating Power of the Factual.' Pennsylvania State International Law Review, Winter.
  • Beck, Gunnar (2007) 'The Idea of Human Rights Between Value Pluralism and Conceptual Vagueness.' Pennsylvania State International Law Review, 25 (3). pp. 615–627.
  • Beck, Gunnar (2007) 'Common law reasoning as ordinary reasoning in extraordinary language.' Zeitschrift für vergleichende Rechtswissenschaft (3). pp. 335–358.
  • Beck, Gunnar (2007) 'The ECJ judgment in Cadman, the state of Community anti-discrimination law, and how the legal becomes the political.' European Law Review, 32 (4). pp. 549–562.
  • Beck, Gunnar (2006) 'Immanuel Kant's Theory of Rights.' Ratio Juris, 19 (4). pp. 371–401.
  • Beck, Gunnar (2006) 'The English Courts and the Application of Community Law.' Irish Journal of European Law.
  • Beck, Gunnar (2005) 'The Problem of Kompetenz-Kompetenz: A Conflict Between Right and Right in which There Is No Praetor.'European Law Review, 30 (1). pp. 42–67.
  • Beck, Gunnar (2005) 'The British Parliament and the Convention on the Future of Europe.' European Law Review, 30 (5). pp. 743–757.
  • Beck, Gunnar (1999) 'Autonomy, History and Political Freedom in Kant's Political Philosophy.' History of European Ideas, 25 (5). pp. 217–241.
  • Beck, Gunnar (1996) 'From Kant to Hegel—Johann Gottlieb Fichte's theory of self-consciousness.' History of European Ideas, 22 (4). pp. 275–294.

Monographs

  • Beck, Gunnar and Mole, Nuale and Reneman, Marcelle (2014). The application of the EU Charter of Fundamental Rights to asylum procedure law, European Council on Refugees and Exiles. Amsterdam: Dutch Council of Refugees.
  • Beck, Gunnar and Horn, H-D. Verfassungsbeschwerde gegen die Mitwirkung der Bundesbank und das Unterlassen der Bundesregierung und des Deutschen Bundestages jeglicher Hinwirkung auf die Aufhebung und Begrenzung der innerstaatlichen Auswirkungen der Beschlüsse des Rates der Europäischen Zentralbank vom 4. September 2014, 2. Oktober 2014, 15. Oktober 2014 und 22. Januar 2015.

Book reviews

  • Beck, Gunnar (2013). "Review of: The Limits of Legal Reasoning and the European Court of Justice by Gerard Conway. Cambridge: Cambridge University Press". International and Comparative Law Quarterly, 62 (2). pp. 515–519.
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