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.

click here for publisher's site

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.

click here for publisher's site

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.

click here for publisher's site

US law is often cast as a notable outlier in two prominent fields of comparative studies. Among comparative constitutional lawyers, the US Supreme Court is famous for its apparent reluctance to embrace the kind of proportionality reasoning seemingly so familiar in Western Europe and in other liberal jurisdictions. And for scholars of comparative criminal justice, the United States stands out, as it has for the past 40 years or so, in terms of the numbers of individuals sent to prison, and in the harshness of the treatment meted out to offenders. Could these two phenomena be connected? By way of an indirect - and incomplete - answer to this question, this paper develops three lines of argument on the punitiveness-proportionality relationship. First, at least some of the factors that help explain cross-country variations in punitiveness, seem relevant also to an understanding of similarities and differences in relation to proportionality reasoning in constitutional jurisprudence. The paper discusses what comparative constitutional lawyers might take from leading work in this area by David Garland, Nicola Lacey, Michael Tonry, James Q. Whitman and others. Second, the comparative punitiveness literature shows how a more substantive understanding of ‘proportionateness’ could be developed, to move beyond the more formal, doctrinal preoccupations of much comparative constitutional law scholarship on proportionality. And third, the paper suggests that penal moderation and proportionality reasoning appear connected in terms of a deeper, underlying sensibility framed here as an ‘intolerance for wrong outcomes’. The paper proposes that future comparative work should aim to engage more directly with this underlying intolerance and its opposites.

CLICK HERE TO DOWNLOAD FULL TEXT [SSRN]

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.

CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]

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.

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.

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.

click here for full text via Swetwise [ON CAMPUS]
click here for full text via Swetwise [OFF CAMPUS]

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).

click here for full text from Berkeley Electronic Press

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.

click here for publisher's site

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.

click here for full text

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.

  click here for full text via SSRN

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.

  click here for full text via SSRN