A Realist’s take on EU law | Tamara Ćapeta

Europa Felix

My guest in this episode is Tamara Ćapeta, Advocate General at the European Court of Justice and law professor at the University of Zagreb. Our main topic of conversation is legal realism, a topic on which she has written several academic articles.
It’s tempting to misconstrue legal realism as a cynical, 'anything goes'-approach to the law. But in Ćapeta‘s writings and in this interview, legal realism emerges as a form of judicial modesty. She argues that the idea that legal questions have a single, correct answer is basically a myth, and hat courts would gain credibility if judges acknowledged more openly that their legal decisions are choices, instead of objective truths.
I ask her what it’s like to be Advocate General and if it has changed her perspective on judicial decision-making. We talk about legal reasoning and objectivity. We discuss if artificial intelligence can replace judges. We talk about transparency in court rulings, about whether the Court of Justice should allow dissenting opinions, and about imagining different realities — in law and in science fiction.

Mentioned:

• T. Ćapeta, ‘Ideology and Legal Reasoning at the Court of Justice’, in: Ćapeta and Rodin (eds.), The Transformation of Reconstitution of Europe, 2018.
• T. Ćapeta, ‘Do Judicial Decision-Making and Quantum Mechanics Have Anything in Common? A Contribution to Realist Theories of Adjudication at the CJEU’, in: Belov (ed.), The Role of Courts in Contemporary Legal Orders, 2019.
• N. Bačić Selanec and T. Ćapeta, ‘The Rule of Law and Adjudication of the Court of Justice of the European Union’, in: Ćapeta, Goldner Lang and Perišin (eds.), The Changing European Union, 2022.
• T. Ćapeta, ‘Of Judges and Robots’, in: Pavliha and others, Izzivi prava v življenjski resničnosti: Liber amicorum Marko Ilešič, 2017.
• Case 59/85 Reed
• Case 41/74 Van Duyn v Home Office
• Case 91/92 Faccini Dori v Recreb

Book recommendations:

• Liu Cixin, The Three-Body Problem trilogy
• Yuval Noah Harari, Sapiens: A Brief History of Humankind
• David Mitchell, Cloud Atlas

Special thanks to Alessandro Spina, Jacco Bomhoff and Mislav Mataija.
Comments? Guest suggestions? Email me at [e-mail].