Jacco Bomhoff

Jacco Bomhoff

Email: J.A.Bomhoff@lse.ac.uk
Administrative support: Lewina Coote
Room: New Academic Building 6.29
Tel.  020-7955-6221

Jacco is an Associate Professor of Law. Before coming to the LSE in 2008 he taught at the Faculty of Law of Leiden University, in The Netherlands. His publications include a monograph on 'Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse' (Cambridge, 2013) and the edited collection 'Practice and Theory in Comparative Law' (Cambridge, 2012, with Maurice Adams). At the LSE he is the co-convenor, with Dr. Jan Kleinheisterkamp, of the Transnational Law Project. During the academic year 2013-2014, Jacco is also a Global Law School Visiting Professor at the KU Leuven in Belgium.

 
Research Interests

I am currently pursuing two main lines of research:

(1) Rethinking the role of private international law in relation to global governance. Within this project, I am particularly interested in private international law's Postwar intellectual history and in its relations to constitutional theory.

(2) Legalism in comparative jurisprudence. This project looks at lawyers' and legal scholars' ideas of what good law and legal reasoning should look like. I am particularly interested in differences among such ideas as between Western Europe and the US during the Postwar era, and about what these differences might mean for law's functioning today.

   
Books  

Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (Cambridge Studies in Constitutional Law) Cambridge University Press 2013

The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.

Practice and Theory in Comparative Law (edited with Maurice Adams), Cambridge University Press 2012

What does doing comparative law involve? Too often, explicit methodological discussions in comparative law remain limited to the level of pure theory, neglecting to test out critiques and recommendations on concrete issues. This book bridges this gap between theory and practice in comparative legal studies. Essays by both established and younger comparative lawyers reflect on the methodological challenges arising in their own work and in work in their area. Taken together, they offer clear recommendations for, and critical reflection on, a wide range of innovative comparative research projects.

N. Huls, M. Adams, J.A. Bomhoff (eds.), The Legitimacy of Highest Courts' Rulings, TMC Asser Press: The Hague 2009

In his Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford 2004), the American-French scholar Mitchel Lasser has, among other things, tried to re-establish the strengths of the French cassation system. Using Lasser's approach and ideas as a starting point, in this book judges from the French, Belgian and Dutch Cassation Courts reflect on the challenges that their Courts are facing. The book also contains a series of contributions from scholars analyzing the wide range of factors that determine the legitimacy of these courts'decisions. Specific attention is given to the Strasbourg Court of Human Rights that has been so important for the moral legitimacy of the European legal order, and to courts in post-communist systems, which face many similar challenges and are even under greater pressure to modernize. The book is a multidisciplinary contribution to the international debate about the legitimacy of the highest courts'rulings as well as the concept of judicial leadership and offers a new perspective in the USA versus Europe debate. It is recommended reading for academics, judges, policymakers, political scientists and students.

J.A. Bomhoff, Judicial Discretion in European Law on Conflicts of Jurisdiction, Sdu Publishers: The Hague 2005

 
Selected articles
and chapters in books
 

'The Constitution of the Conflict of Laws' LSE Law Society and Economy Working Paper Series, 04-2014

Private international law doctrines are often portrayed as natural, largely immutable, boundaries on local public agency in a transnational private world. Challenging this problematic conception requires a reimagining of the field, not only as a species of public law or an instrument of governance, but as a constitutional phenomenon. This paper investigates what such a ‘constitution of the conflict of laws’ could look like. Two features are given special emphasis. First: the idea of the conflict of laws as an independent source of constitutionalist normativity, rather than as a mere passive receptacle for constraints imposed by classical, liberal, constitutional law. And second: the possibility of a local, ‘outward-looking’ form of conflicts constitutionalism to complement more familiar, inwardly focused, federalist conceptions.

‘Perfectionism in European Law’ 14 Cambridge Yearbook of European Legal Studies 75 (2011-2012)

European law manifests powerful perfection-seeking internal dynamics, nudging— even compelling—legal actors to strive to make the European legal order ‘the best it can be’. This paper uses a comparative approach to show that this perfectionism is contingent (that is, not necessarily shared by all legal orders), and that it is a highly distinctive characteristic of European legalism specifically. Uncovering the hidden dynamics of this juridical perfectionism is an important step towards rethinking European law’s agency and its correlate: our own ability to shape European integration through law.

'Comparing Legal Argument' in Practice and Theory in Comparative Law (edited by Jacco Bomhoff; Maurice Adams), Cambridge University Press 2012

Legal reasoning in Western legal systems, to a large extent, turns on the use of a limited number of familiar forms of argument – reasoning by analogy, reasoning from legislative history, ‘proportionality’ reasoning, etc. This article suggests a methodological framework for comparing the use of such forms of legal argument as across different systems. Its ambition is to bridge the classic divide between functionalist studies of legal ‘solutions’ and expressivist analyses of ‘meanings’ by way of a renewed focus on shared characteristics of Western law - or ‘the internal logic of juridical functioning’. Understanding the meaning of legal arguments in terms of their relative contribution to the legitimization of public authority, the article claims, can ground a comparative method that is simultaneously both ‘minimally functionalist’ and ‘maximally internal’, and that allows for the systematic comparison of the ‘local meanings’ of different legal arguments.

Bomhoff, J and Meuwese, Anne: 'The Meta-regulation of Transnational Private Regulation' (2011) Journal of law and society 38 (1), p. 138.

This article starts from the assertion that Transnational Private Regulatory Regimes (TPRERs) construct relationships of recognition with the plurality of public and private normative orders and actors that surround them. We argue that the strategies and norms adopted to manage these relationships are reflexive responses to competing legitimacy demands and to issues of regulatory conflict and that they have a meta‐regulatory character. More specifically, we explore two disciplines and professional fields, Better Regulation (BR) and Private International Law (PIL), as direct sources of meta-norms and as more indirect sources of inspiration for meta-regulatory strategies. Building on literature that has cast transnational governance and conflict of laws thinking as abstract repositories of potentially useful meta‐regulatory ideas, we explore the actual potential for – and limitations of – the migration of disciplinary practices and perspectives in the context of TPR.

'Alex Mills - The Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law'  -- Book Review, International and Comparative Law Quarterly, 2011 60 (3) pp. 822-824

Genealogies of Balancing as Discourse, 4(1) Law & Ethics of Human Rights 107 (2010)

The language of balancing and proportionality figures increasingly often in judicial and academic constitutional legal reasoning in Western democracies. The spread of this particular form of discourse raises important methodological and substantive issues for scholars of comparative law. While the dominant narrative in the relevant lines of scholarship has long been one of similarity and convergence, this article argues that not enough attention has been paid to the possibility of difference—the idea that references to balancing might mean very different things in different settings. In Parts I and II, the article suggests that a methodological shift—from a focus on balancing as doctrine to a focus on balancing as legal argument—will be necessary to bring out these different meanings. Based on a case study of early and mid-twentieth century practices in Germany and the United States, it is argued that one crucial difference in the local meanings of balancing in these settings relates to the extent to which choices of legal form are locally expected to have inherent substantive implications (Parts III and IV).

'Comparing Judicial Reasoning on a Formalism/Policy Axis', in: N. Huls, M. Adams & J. Bomhoff, The Legitimacy of Highest Courts' Rulings – Judicial Deliberations and Beyond (T.M.C. Asser Press 2009)

Comparative studies of legal reasoning often rely on conceptions of 'formalism' as a uniform point of reference. The outcome of such studies is typically that legal or judicial reasoning in one setting is 'more formal', whereas in another it is 'more policy oriented' or 'more open-ended'. This paper uses Mitchel Lasser's study of the discursive outputs of the French Cour de cassation, the ECJ and the US Supreme Court as a case study for an investigation into the possibilities and limitations of the role of 'formalism'– and its perceived antinomies - in comparative legal studies. The paper argues that while legal formality clearly means different things in different settings, it is still possible to develop understandings of formalism that can profitably be used in comparative legal research.

'The Reach of Rights: The "Foreign" and the "Private" in Conflict of Laws, State Action and Fundamental Rights Cases with Foreign Elements' 71 Law & Contemporary Problems 39 (summer 2008)

Increasingly often, courts around the world are confronted with fundamental rights cases that are not wholly internal to the legal order they strive to uphold. This paper approaches the problems raised by 'fundamental rights cases with foreign elements' through the elaboration with analogies with the fields of conflict of laws (private law cases with foreign elements) and state-action (fundamental rights cases with private elements). Juxtaposing these three problematic areas of law allows for an investigation into the parallels and differences between 'the foreign' and 'the private' and of the role fundamental rights can play in each of these spheres. Based on these analogies, the paper argues for a more central role in contemporary constitutional theory for questions on how various forms of 'foreignness' should be allowed to affect the extent of the responsibility of States to safeguard the protection of the fundamental rights of individuals.

'Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law' 31 Hastings Int. & Comp. L. Rev. 555 (2008)

Courts in Europe, North-America and elsewhere frequently use the language of 'balancing' when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or 'weighing', to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons.

First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force depends to a large extent on explicit and implicit appeals to values that are understood to transcend the local, such as rationality, fairness and reasonableness. The ways in which balancing references voice these appeals, moreover, can be shown to differ between legal systems. These complex ambivalences place balancing squarely in between the two main competing models for comparative legal studies. Second, balancing references, in many of the ways they figure in legal discourse, habitually transcend familiar categories of legal thought, such as doctrine or principle, or traditional conceptual divisions, such as form/substance and legal/political. This means that a number of commonly relied-upon abstractions are not easily available for comparative investigations of this particular topic.

The article argues that these two sets of difficulties in situating balancing in terms of traditional comparative law approaches have contributed to an overemphasis on similarities and a comparative neglect of differences in local manifestations of balancing discourse. Underscoring the suggestion that the very idea of balancing can mean different things in different places, the article claims, will be essential in developing of a richer understanding of the legitimizing force of a type of discourse that has become crucial in fundamental rights adjudication.

' "The Rights and Freedoms of Others": The ECHR and its Peculiar Category of Conflicts between Fundamental Rights' in: E. Brems (ed.), Conflicts Between Fundamental Rights, Intersentia: Antwerp/Oxford 2008 

Conflicts between individual fundamental rights are both pervasive and problematic in the system of the European Convention on Human Rights. This paper is an attempt to illuminate these two dimensions, as well as a plea for taking conflicts of rights more seriously within the Convention legal order.

The paper uses a comparative law perspective to demonstrate that the Convention system operates with an exceptionally broad category of 'conflicts between individual fundamental rights'. The size and location of this category are attributable, at least in part, to the Convention system's exclusive reliance on a rights-based perspective and the corresponding absence of any 'division of powers' jurisdiction for the European Court of Human Rights. This institutional set-up, unique among (quasi)-constitutional courts, coupled with the absence of a 'thick' understanding of democracy at the European level, pushes the Court towards framing a large proportion of conflicts between individual and collective interests before it as conflicts between individual fundamental rights.

Although current institutional arrangements significantly limit possibilities for the Strasbourg Court to modify its approach, the paper does propose a number of ways in which the ECHR could take conflicts of fundamental rights more seriously. These suggestions focus on situations in which framing a conflict as a clash between individual rights may be suboptimal, suspicious, or both. The situations identified are those in which (1) individuals are opposed to the 'rights' of majorities, (2) individuals are opposed to the 'rights' of public officials, and (3) cases in which the distribution of, or access to, public resources is a central issue.