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.
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J.A. Bomhoff, Judicial Discretion in European Law on
Conflicts of Jurisdiction, Sdu Publishers: The Hague 2005
'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.
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'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.
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'Lüth's 50th Anniversary: Some Comparative Observations on the
German Foundations of Judicial Balancing', 9 German Law Journal 2 (2008)
A short comment in the German Law Journal on the
anniversary of the Federal Constitutional Court's decision in the Lüth case.
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'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.
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' "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, suscpicious, 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.
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Jacco Bomhoff 