When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach

Mathilde Cohen 

University of Connecticut - School of Law
2015

Washington and Lee Law Review, Vol. 72, 2015 
Abstract:      

Influential theories of law have celebrated judicial reason- giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason- giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for and against reason-giving in increasingly similar ways.

By combining theories of democratic legitimacy with empirical, doctrinal, and historical evidence of judges’ concrete reason-giving practices in the United States and Europe, the Article argues that rather than being in opposition, these two legal cultures are converging toward a common methodology. No longer can it be assumed that civil law judges and common law judges are on opposite ends of the spectrum.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2646871

The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada

Richard Albert 

Boston College - Law School; Yale University - Law School

August 23, 2015

41 Queen's Law Journal (2016 Forthcoming) 

Abstract:    
It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Courts have enforced both written and unwritten limits on how political actors may exercise the formal amendment power. They have relied either on constitutional texts that expressly entrench provisions against formal amendment or on their own interpretation of these texts as implicitly establishing an unalterable constitutional core. Although the Supreme Court of Canada has not yet invalidated a constitutional amendment, modern case law provides the constitutional basis for the Court to declare that a future constitutional amendment violates either the text or spirit of the Constitution of Canada. In this Article, I trace the origins and evolution of the theory and doctrine of unconstitutional constitutional amendment, I explain how the theory and doctrine may apply today in Canada, and I suggest a detailed framework to evaluate when and how the Supreme Court of Canada may exercise the extraordinary residual constitutional authority to invalidate a constitutional amendment.

Keywords: Constitutional Amendment, Unconstitutional Constitutional Amendment, Basic Structure Doctrine, Formal Amendment, Informal Amendment, Constitution of Canada, Indian Constitution, Amendment Difficulty, Supreme Court of Canada, Constitutional Interpretation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2649447

The Meanings of Concurrency

Anna Dziedzic 

Melbourne Law School

Cheryl Saunders 

Melbourne Law School
August 20, 2015

Concurrent Powers in Federal Systems, Nico Steytler (ed), Martinus Nijhoff Publishers, 2015
U of Melbourne Legal Studies Research Paper No. 712 
Abstract:      

Concurrency is a feature in the organisation of legislative powers in most federal systems. Broadly understood, concurrency arises when legislative powers are conferred in a way that enables both the central and regional spheres of government to legislate on the same subject matter in certain conditions. This paper seeks to demonstrate that there are significant variations amongst federal systems in the way in which concurrency is used and applied. It examines how concurrency is understood in five federal systems: Australia, Germany, India, South Africa and the United States. It traces the principal variations in the use and application of concurrency with respect to the design of constitutional provisions, the scope of authority that concurrent power confers, the significance of an exercise of concurrent power by both spheres of government at the same time, and the relevance (if any) of concurrency to the authority of regional governments to administer central laws. The paper also suggests some possible reasons for the different uses and understandings of concurrency, including the circumstances in which the federation was formed, pre-federation history and institutional context. The findings are significant for comparative constitutional method, insofar as they demonstrate that a concept that often is assumed to have shared meaning across federal type systems, in fact is both understood and used in different ways. The findings have practical significance as well, not least for the design of federal constitutions, most of which employ the concept of concurrency in some way.

Number of Pages in PDF File: 22

Keywords: federalism, comparative constitutional law, legislative powers

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2648673

Viking's 'Semantic Gaps': Law and the Political Economy of Convergence in the EU

Peter L. Lindseth 

University of Connecticut School of Law
May 6, 2015

Forthcoming in Bill Davies and Fernanda Nicola, eds., EU Law Stories: Critical and Contextual Histories of European Jurisprudence (Cambridge University Press) 
Abstract:      

This chapter is part of a forthcoming edited volume exploring alternative approaches and readings of decisions of the European Court of Justice (ECJ) within their political, economic and legal contexts. This contribution focuses on the Viking judgment of December 2007, which, together with the Laval decision of the same month, is famous for subjecting the right to strike under national law to certain potential limitations deriving from European law. In the case of Viking specifically, those limitations flowed from the need to balance the right to strike against the freedom of establishment under ex Article 43 EC (now Article 49 TFEU). The specific holding in the case, however, as well as the ensuing controversy in the EU legal literature, are not really our concern here, or at least not directly. Rather, the focus of this chapter is on what the judgment does not say — on its 'semantic gaps', so to speak — most importantly between the ECJ's emphasis on balancing 'rights' in a constitutional/legal sense versus the European Commission's more technocratic/political role as manager of the Cohesion Policy — the EU's internal development policy for economically disadvantaged regions and member states. By focusing on these differing institutional and policy perspectives, this chapter seeks to refocus our attention on the broader challenge of legal, political, and economic 'convergence' that lies at the heart of the integration process, particularly after the EU’s enlargement to the east in 2004. The attempt at a combined perspective here also seeks to understand the tensions flowing from enlargement in the context of the political economy of market integration, with an eye to the historical experience in the North Atlantic world stretching back to the nineteenth century. The chapter concludes by reflecting on the relationship of the Viking controversy to a theory of institutional change along three dimensions — functional, political, and cultural — as well as on what this episode suggests for the continued tension between the national and the supranational (that is, between 'democracy' and 'demoi-cracy') in the ongoing crisis of European integration.

Number of Pages in PDF File: 13

Keywords: European Union, European Court of Justice, Viking, Laval, right to strike, freedom of establishment, cohesion policy, convergence, market integration, political economy, economic history, institutional change, demoi-cracy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2603072

The Difficulty of Constitutional Amendment in Canada

Richard Albert 

Boston College - Law School; Yale University - Law School
May 24, 2015

Alberta Law Review, Vol. 39 (2015), Forthcoming
Boston College Law School Legal Studies Research Paper No. 362 
Abstract:      

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. But in this paper I suggest that the Constitution of Canada may be even harder to amend. Modern Canadian political history has proven the textual requirements for major constitutional amendment so far impossible to satisfy, yet the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the Constitution’s formal amendment rules. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as-yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

Number of Pages in PDF File: 29

Keywords: Constitutional Amendment, Formal Amendment, Informal Amendment, Constitution of Canada, United States Constitutional, Amendment Difficulty, Constitutional Rigidity, Secession Reference, Senate Reference, Nadon Reference, Regional Veto Law, Clarity Act

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2609939

Legal Manifestations of the Emergency in National Euro Crisis Law

Stephen Coutts 

European University Institute

Leticia Díez Sánchez 

European University Institute - Department of Law (LAW)

Afroditi-Ioanna Marketou 

European University Institute - Department of Law (LAW)

Leonardo Pierdominici 

European University Institute - Department of Law (LAW); University of Bologna - Faculty of Law
2015

EUI Department of Law Research Paper No. 2015/14 
Abstract:      

Most constitutions foresee a 'state of emergency' associated with the existence of an armed conflict. Paradoxically, modern societies seem to be permanently confronted with genuine emergencies increasingly removed from the threat of actual, physical violence. The Eurozone crisis can be said to have accentuated this, as the immense pressures from financial markets have turned the control of public finances into a struggle for the survival of the affected States. The present paper explores the legal manifestations of emergency in the domestic law of Greece, Italy, Spain and Ireland. These countries have all been hit by the Eurozone crisis (albeit in different manners) and have had to accommodate external oversight in their crisis management. The adoption of emergency measures for tackling the economic upheavals has been diverse across the case studies, although all have in common the emergence of a prominent role for the executive in the aftermath of the Eurozone crisis.

Number of Pages in PDF File: 29

Keywords: Constitutional law; Constitutional change; Eurozone crisis; Economic emergency; Emergency legislation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2610657

Conventions of Unamendability: Unamendable Constitutional Law in Politically Enforced Constitutions

Gert Jan Geertjes 

Leiden Law School, Department of Constitutional and Administrative Law

Jerfi Uzman 

Leiden University - Leiden Law School
June 17, 2015

Abstract:      

Legal scholarship on unamendable constitutional provisions regularly tends to focus on, what one might call ‘judicially enforced constitutions’. These are characterized by strong-form judicial review on the basis of a written constitution. Political constitutions, such as the United Kingdom and The Netherlands, are - on the other hand – to a large extent enforced by the political branches of government. The constitutional unamendability featuring in comparative scholarship usually concerns explicit (unamendability based on so-called ‘eternity clauses’) or implicit forms (unamendability inherent in the so-called ‘inner logic of the constitution’). These usually take place in (quasi-) constitutional court litigation. The classic example concerns a constitutional court directly invalidating acts of the (constitutional) legislature. At first sight, political constitutions do not fit well with existing perceptions of constitutional unamendability. Consequently, legal systems lacking judicial review of parliamentary legislation would arguably fall well outside the categories of either explicit or implicit constitutional unamendability.

We argue however, that political constitutions nonetheless contain mechanisms of unamendability. These mechanisms operate in the form of judicial or executive disobedience. As an example might serve the current debate on the future of the European Convention of Human Rights in the UK. Political calls for abandoning the judicial enforcement of European human rights law, have led British courts to respond by developing common law constitutional rights largely inspired by the ECHR. As a result, the judicial branch may continue to uphold fundamental rights, even in the unlikely event that Parliament would abolish such rights altogether. Similar examples may be found in Dutch case law.

The doctrine of unconstitutional constitutional amendments thus becomes relevant to a broader range of constitutional systems, such as the UK and The Netherlands. However, the concept of unamendability in political constitutions requires a more subtle approach. The unamendability of this type of constitutions does not emerge from constitutional provisions, whether explicit or not, but from principles embedded in constitutional culture. The nature of unamendability in these legal systems rather takes the form of conventions. The question whether parts of the constitution should be regarded as unamendable thus cannot be solely couched in the all-or-nothing terminology of legal rules. Instead, we argue that conventions of unamendability, due to their principle-based character, may be subject to changing circumstances and exceptions. Using existing literature on conventions as a model, we offer a comparative account of constitutional unamendability in political constitutions (i.e. legal systems lacking strong-form judicial review of legislative action).

Number of Pages in PDF File: 20

Keywords: Politically enforced constitutions, unconstitutional constitutional amendment, constitutional conventions, constitutional law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2619643

Eurocrisis and the Myths of European Redistribution: Illegitimate, Unsustainable, Inefficient?

Francesco Nicoli 

Università degli Studi di Trento - Department of Economics and Management
June 23, 2015

Abstract:      

Criticism of European solidarity relies on three cornerstone arguments with mythological features. First is the “Myth of the Beggar”: it is believed that supranational solidarity is self-defeating, as it produces a moral-hazard scheme where endogenous incentives to reform (otherwise known as “market pressure”) are artificially removed. Second stands the “Myth of the Efficient Markets”: it is believed that solidarity, through its market-distortive effects, artificially allocates resources into less productive activities, thus decreasing the overall growth rate of the economy. Third is the “Myth of the Demos”: it is believed that democracy -- and thus redistribution -- can endure only within a single Demos, and thus no solidarity can exist outside of a Demos. As for any legend, there lays some truth in the three myths of supranational solidarity. Nonetheless, this paper aims to challenge the view that any scheme of solidarity is self-defeating, inefficient and illegitimate. The first section discusses under which conditions a solidarity scheme does not fall into a moral-hazard trap. The second section deals with the efficient market hypothesis, showing that -- if the moral-hazard issue is dealt with -- it would be inefficient for markets not to finance the economy in distress, regardless of the existence of a solidarity scheme. The third section deals with the issue of legitimacy outside the Demos. We found that, despite its highly disputed nature, this problem constitutes the most challenging issue for a working solidarity scheme, because it calls into question the philosophical foundations of democracy and the personal beliefs of individuals concerning what a demos is about. The paper argues that, while particular institutional arrangements may deal with the weak form of the no-demos thesis, no solidarity scheme can be introduced if we stick to the strong version of the thesis. In the conclusive section the findings of the previous parts are brought together to define a comprehensive set of conditions required to have a sustainable, effective and legitimate solidarity arrangement in the EMU.

Number of Pages in PDF File: 26

Keywords: redistribution, eurocrisis, economics, EU, solidarity, hard times, moral hazard, efficient markets, myth, beggar, sustainable, efficient, legitimate, demos, samaritarian dilemma

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621981

Supreme' Courts and the Imagination of the Real: An Essay in Honor of Mirjan Damaška

Oscar G. Chase 

New York University School of Law
June 24, 2015

“The Administration of Justice - Past Experiences and Challenges for the Future” a festschrift in honor of Mirjan Damaska (2016 Forthcoming)
NYU School of Law, Public Law Research Paper No. 15-23 
Abstract:      

In Local Knowledge, Fact and Law in Comparative Perspective, Clifford Geertz brought his interpretive method of cultural analysis to bear on the relationship between local systems of law and the cultures in which they are situated. Geertz’ argument can be summed up by his aphorism: “Law is but part of a distinctive manner of imagining the real.” I explore this puzzling statement by examining the role of supreme courts in constructing and maintaining the “imagined real” of the society in which they function. Using the Supreme Court of the United States as my principal example I claim that these courts are among the institutions that validate commonly held but culturally constructed notions of time, place, and the collective self. The focus is not on the content of judicial decisions but on the institutions and their practices. A brief conclusion situates my arguments within the broader point that fundamental socially constructed beliefs are created and sustained by the institutions through which they are expressed.

Keywords: culture, constitution, courts, Geertz, interpretive method, supreme courts

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2622521

Human Dignity in Comparative Constitutional Context: In Search of an Overlapping Consensus

Adeno Addis 

Tulane University - Law School
2015

2 Journal of International and Comparative Law 1 (2015)
Tulane Public Law Research Paper No. 15-11 
Abstract:      

The concept of human dignity plays an important role in ordinary conversations and legal and political theories. It also occupies a prominent place in numerous national constitutions and international conventions. Yet, it is not always clear what the concept means or entails. The author, in an earlier work, argued that in a world of plural values and ethical commitments a top-down approach, whether philosophical or religious, is unlikely to provide us with a common standard for deciding what it means to dignify humans or to subject them to indignities. Building on the earlier work, this article argues that the best way to understand the scope and content of human dignity is to engage in a bottom-up inquiry, carefully describing the choices communities make in the name of human dignity. The purpose of such inquiry is to see whether there are patterns in the usage that suggest that there is a convergence of, an overlapping consensus on, an understanding of the phrase that could be appropriated as a standard of measurement in intercultural and intersystem conversations and critiques. Focusing on references to human dignity in national constitutions, the article shows that there are in fact patterns of usage that suggest the existence of a consensus on specific understandings of dignity.

Keywords: human dignity, constitutions, equality, human rights, jurisprudence, physical integrity

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2625316

The Role of Courts in 'Making' Law in Japan: The Communitarian Conservatism of Japanese Judges

John Owen Haley 

University of Washington - School of Law
June 1, 2013

Pacific Rim Law & Policy Journal, Vol. 22, No. 3, pp. 491-503, 2013 
Abstract:      

Courts in Japan have long played a central role in the formation and development of law. Despite some scholarly dissension as to the theory of judicial precedent as a source of law, adherence to judicial precedent is well-established in law and practice, touching nearly all fields of Japanese law.

This essay offers historical perspectives on judicial and legal precedent — from the twelfth century through the Meiji Era, the Taisho and early Showa Eras, and through the postwar period. It discusses the role of precedent and Japan's distinctive pattern of subsequent legislative action affirming judicial precedent (sometimes years later).

This essay is based on an address at the University of Waseda, October 22, 2012.

Keywords: Japan, Japanese law, courts, judicial system, precedent, judge-made law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2627419

How Unwritten Constitutional Norms Change Written Constitutions

Richard Albert 

Boston College - Law School; Yale University - Law School
July 9, 2015

Dublin University Law Journal, Vol. 38, 2015, Forthcoming
Boston College Law School Legal Studies Research Paper No. 364 
Abstract:      

Written constitutions are susceptible to informal changes that do not manifest themselves in alterations to the text, for instance as a result of judicial interpretation, legislative enactment or executive action. This phenomenon is well developed in the scholarly literature on constitutional change and informal constitutional amendment. But what remains understudied and undertheorized in Canada and the United States is how written constitutions change informally as a result of the development of an unwritten constitutional norm, otherwise known as a constitutional convention. In this Article, I hypothesize with reference to the Canadian and United States Constitutions that there exist two major categories of informal constitutional change by constitutional convention: incorporation and repudiation. I suggest also that incorporation and repudiation may each occur in two ways: incorporation may occur by filling an existing void in the constitutional text or by refining one of its existing provisions, and repudiation may result from creating a void in the constitutional text or from substituting one of its existing provisions. I then evaluate whether these four forms informal constitutional change by constitutional convention entail costs to the rule of law where constitutional meaning is rooted in the present public meaning of the constitutional text. My larger purpose in this Article is to invite a dialogue with comparative public law scholars on how unwritten constitutional norms change written constitutions so that we may ultimately better understand the forms and implications of unwritten constitutional change.

Keywords: Constitutional Change, Constitutional Convention, Unwritten Constitutional Norms, Constitutional Amendment, Formal Amendment, Informal Amendment, Constitutional Interpretation, Constitution of Canada, United States Constitution, Ivor Jennings, Rule of Law, Democracy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2628460

The Legitimacy of Comparative Constitutional Law: A Modal Evaluation

Bradley Silverman 

Yale Law School
July 12, 2015

Abstract:      

In recent years, there has been intense debate — within the judiciary, academia, the press, even Congress — over the legitimacy of using foreign law in American courts. This question cannot be answered, however, unless one knows what the relevant criteria for constitutional legitimacy are. By what standards should we decide whether it is appropriate for American courts to cite foreign law in their decisions? Before we can figure out whether it is constitutionally proper for American courts to use foreign law, we need to first agree on what makes something constitutionally proper. In a pair of path-breaking books, Constitutional Fate: Theory of the Constitution and Constitutional Interpretation, Philip C. Bobbitt offers a modal approach to constitutional argument, presenting six different types, or modalities, through which constitutional discourse is channeled. This Article will attempt to evaluate the legitimacy of the practice of comparative constitutional law by American courts through modal lenses. It will ask one question — is it legitimate for our judges to cite foreign law? — six times, each time analyzing it within a particular modal framework; textual, historical, structural, doctrinal, prudential, and ethical. Using those methodological tools, it will provide one answer.

Number of Pages in PDF File: 33

Keywords: comparative constitutional law, comparative, constitutional, modalities, jurisprudence

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629902

In Defence of Judicial Innovation and Constitutional Evolution

Fiona De Londras 

Durham University - Durham Law School
July 13, 2015

Forthcoming in Laura Cahillane, Tom Hickey & James Gallen, JUDGES, POLITICS AND THE IRISH CONSTITUTION (2016; MUP) 
Abstract:      

The meaning of broadly drawn constitutional provisions is rarely static or self-evident. Thus, certain branches — including the judiciary — usually have a role in interpreting them. Although this task is often shared between different branches of government (and, thus, essentially collaborative), the role of superior courts is particularly significant, especially (although not only) in so-called ‘legal constitutions’ (i.e. written constitutions in which constitutional, rather than parliamentary, supremacy is the norm). In carrying out their interpretive role, judges are at least sometimes innovative (or what some might call ‘activist’), and that innovation is a key element of constitutional evolution. This is not uncontroversial; many argue that judges ‘overreach’ when they engage in such innovation and, as a result, prefer a more restrained judicial role. However, exploring this in the Irish context, I argue in this chapter that judicial innovation is an important and legitimate part of constitutional evolution, taking into account the broader constitutional tradition and structure within which Irish superior courts operate.

Constitutions require interpretation. Governance must constantly address new and emerging issues. Any system of governance that has a constitutionalist orientation is constantly faced with the task of establishing and assessing the constitutionality of new responses to old and emergent challenges. Innovative constitutional interpretation is necessary so that the boundaries and limits of constitutionally permissible action can be identified in the face of new and different forms of government activity and governance. Through their engagement in constitutional interpretation, courts play a vital role in that enterprise.

Making out this argument in this short essay comprises both a positive and a negative case. The positive case posited here is that innovation in constitutional interpretation is a necessary part of the judicial role; the negative case I forward is that such innovation is not an illegitimate judicial activity. This chapter starts by sketching what I term an ‘ecosystem’ of constitutional interpretation, placing the judicial role in constitutional interpretation into a broader context. I then proceed to outline the positive and negative cases. While the paper is primarily oriented towards defending judicial innovation in Ireland, the arguments contained herein are more broadly applicable allowing for technical adjustments based on the particularities of different politico-legal systems. Thus, the paper draws on examples from within and beyond Irish jurisprudence throughout.

Number of Pages in PDF File: 22

Keywords: judicial activism, judicial innovation, constitutions, Irish Constitution, comparative constitutional law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2630263

A Framework for Comparative Analyses of International Law and its Institutions: Using the Example of the World Trade Organization

Colin B. Picker 

University of New South Wales (UNSW) - Faculty of Law

July 1, 2010

A Framework for Comparative Analyses of International Law and its Institutions: Using the Example of the World Trade Organization; COMPARATIVE LAW AND HYBRID LEGAL SYSTEMS (Eleanor Cashin Ritaine , Seán Patrick Donlan & Martin Sychold , eds.)) (PUBL. OF SWISS INSTIT. COMP. L) (2010). 

Abstract:    
Since the Second World War, international law has greatly matured. Today, more than ever before, it and its institutions seem “real” – in other words, like domestic legal systems. Perhaps then, they can be brought into the domain of the comparatist. Of course, international law and its institutions are not quite the same as domestic legal systems and institutions. Great care must be taken by any comparatist embarking on a comparative analysis of international law, its sub fields or institutions. But, the great rewards of such an endeavor may be significant, both for the field or institution under review – and for comparative law itself. the author has previously considered international law from a comparative perspective, indeed from the perspective of a subset of comparative law, that of the Mixed Jurisdictions. There, it was argued that, when taken as a whole, international law was significantly akin to those Mixed Jurisdiction systems. The next step in the comparative analysis of international law is to apply a comparative analysis to specific fields and institutions within international law, seeking to identify and understand their legal cultures. Despite the fact that understanding the role of legal culture in international institutions is very important, it is not normally the subject of examination as it is not normally recognized as an issue by practitioners, officials or scholars. Indeed, it is not usually the subject of analyses by comparatists, who usually focus on domestic systems, and within those systems not as often on public law matters. Of course, given that most international law specialists are not comparatists and that most comparatists are not often knowledgeable or interested in international law, it is no surprise that this issue has generally been generally ignored. Yet, as the WTO and other international institutions become ever more “real”, there is a pressing need to study their legal cultures. This chapter, however, will not attempt to complete such a comparative analysis of any specific international sub field or institution. Instead, what it will attempt to do is to lay the groundwork for subsequent such analyses. In doing so, this essay will lay out a general framework, focusing specifically on the many questions that should be considered in any such analyses. To give life to this comparative exercise,the chapter shall use examples from an ongoing comparative analysis of an international institution, the World Trade Organization (the “WTO”) and its legal culture.

Number of Pages in PDF File: 21

Keywords: international law; comparative law; WTO; world trade organization; legal culture

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2631330

An Introduction to Comparative Analyses of International Organizations

Colin B. Picker 

University of New South Wales (UNSW) - Faculty of Law
July 1, 2014

An Introduction to Comparative Analyses of International Organizations in COMPARATIVE LAW & INTERNATIONAL ORGANIZATIONS: COOPERATION, COMPETITION AND CONNECTIONS) (PUBL. OF SWISS INSTIT. COMP. L) (2014) (Colin B. Picker, Lukas Heckendorn Urscheler & Daria Solenik, eds.)) 11-38 
Abstract:      

Legal systems, institutions and organizations comprise more than just rules, regulations and laws. They are also made up of individuals that create, implement and regulate those systems, institutions and organizations. Humans themselves, however, are not so easily compartmentalized and will tend to bring their home legal cultures into the international legal order. Additionally, they will tend to create new legal cultures within those international intergovernmental organizations (“IOs”) and fields. But, the interactions and operations of those legal cultures — be they domestic or international, new or old, competing or complementing — will often have significant implications for the processes and functions of those different legal cultures, individually or together. Accordingly, examination of those legal cultures and their interactions is necessary to really understand the international legal order, on its own or in its interactions with domestic systems. This chapter will thus introduce the idea of applying comparative legal cultural analyses to the international legal order, and specifically to IOs — the backbone of the international legal order. Because such analyses are somewhat unusual and little known, this paper will also provide a methodological toolbox for those analyses.

Number of Pages in PDF File: 32

Keywords: international law; international institutions; comparative law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2631304

Burqas and Bans: The Wearing of Religious Symbols Under the European Convention of Human Rights

Armin Steinbach 

Oxford University - Nuffield College; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

July 1, 2015

Cambridge Journal of International and Comparative Law, Volume 4, Issue 1, 2015

Abstract:    
The wearing of religious symbols has been subject to more or less restrictive national regimes. In Europe, the Convention on Human Rights sets transnational conditions in this regard and has recently been interpreted to give great leeway to national states. Open-face communication is now being accepted an indispensable requirement of “living together” that qualifies as “rights and freedoms of others” within the meaning of Article 9 para. 2 ECHR. In S.A.S. v France, the ECHR created a new ground to justify interference with the freedom of religious expression. This article questions the Court's expansion of existing grounds of justification as no sufficient legal basis exists and sociocultural considerations do not protect individual rights as required under the term “rights and freedoms of others”. To that end, the basis for grounds of justification is examined in light of the evolution of the Court's jurisprudence on the wearing of religious symbols. While public security and order, health and improper proselytism are well-established reasons for interference, the Court's acceptance of secular orders highlights the ambiguity of the terms “pluralism” and “tolerance” as referred to in case-law. The article finds that this jurisprudence has given significant leeway to Member States in regulating religious expression and paved the way for the Court's new approach under which behavioural social norms may be used to ban face-covering religious cloth. In addition, the doctrine of the margin of appreciation does not justify the expansion of the legitimate aims pursued under Article 9 para. 2 ECHR.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2636170

Finding the Right Paradigm - Comparative Lessons for South Africa's Transformative Constitutionalism

Michaela Hailbronner 

Institute for Comparative and Intl. Law in Africa

March 30, 2015

Abstract:    
A South African “brand”, transformative constitutionalism has traditionally been seen either as particularly South African or at least Global South paradigm. But its call for the comprehensive change of state and society extends beyond the Global South to countries such as Germany that share a similarly broad understanding of constitutional law and the need for an activist state. Different countries, however, have approached transformative constitutionalism differently: While some have taken a more “traditional” law-focused approach, others have opted for a more “political” one. Within the traditional legal model, exemplified by the German case, courts seek to preserve those features typically associated with judicial rather than political processes, e.g. the individualized nature of proceedings. In contrast, the Indian co-ordinate approach often involves negotiation between different stake-holders and emphasizes legal flexibility.

Both models come with different approaches to judicial legitimacy: Whereas the Indian Supreme Court emphasizes its contribution to alleviating suffering, judicial legitimacy in Germany follows more traditional lines of Continental legal culture that ground judicial authority in professionalism and legal autonomy. When it comes to realizing a transformative constitution, both approaches have their downsides and advantages. Much suggests therefore that the best way for South Africans is to take a middle path. Such a middle path would seek to avoid the overly hierarchical German approach with its problematic consequences for democratic empowerment by emphasizing collaborative and dialogic procedures. At the same time, however, it would preserve the key role of individual rights and emphasize the role of doctrinal scholarship in contributing to the development of a body of transformative law – thus providing the foundation for an independent source of professional judicial legitimacy.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2636387

Who Supports International Law, and Why? The United States, the European Union, and International Law

Mark A. Pollack 

Temple University - Department of Political Science; Temple University - James E. Beasley School of Law

July 7, 2015

The International Journal of Constitutional Law, Vol. 13, No. 4, 2015, Forthcoming 

Abstract:    
Over the past several decades, it has become commonplace in both scholarly and political circles to contrast the positions of the United States (US) and the European Union (EU) toward the rule of international law, with the US being characterized at best by ambivalence toward legal constraints, and at worst as a “rogue nation.” The EU, by contrast, has presented itself and been seen as a strong supporter of international law. The symposium introduced by this paper interrogates this conventional wisdom, applying and testing a theoretical framework that attempts to disaggregate both the nature and the causes of state support for international law. This introduction is organized in four parts. Part I problematizes the dependent variable, “support” for international law, disaggregating that concept into four discrete dimensions of leadership, consent, compliance, and internalization. Part II moves from characterizing to explaining attitudes toward international law, identifying four sets of factors or independent variables – international and domestic, political and legal – that might account for observed differences between the US and the EU. Part III introduces the five empirical papers in the symposium, which deal respectively with international human rights law, criminal law, environmental law, trade law, and the internalization of international law by US and EU high courts. Part IV concludes with preliminary findings about the nature and the determinants of US and EU support for international law. With respect to the dependent variable, we find considerable differences between the US and the EU, as suggested by the conventional wisdom, but we also identify important nuances in the nature of those differences, which center primarily around the dimensions of consent and internalization, albeit with important variations across issue-areas. In terms of the independent variables, we find that the roots of US and EU differences are complex and multi-causal, defying any effort to reduce those differences to simple contrasts such as American exceptionalism or the EU’s normative difference.


Keywords: International law, treaties, United States, European Union, human rights, trade, international criminal law, environmental law, courts

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2636844

Constitutions of Arab Countries in Transition: Constitutional Review and Separation of Powers

Clark B. Lombardi 

University of Washington School of Law; University of Washington - Henry. M. Jackson School of International Studies

2014

IE Med Mediterranean Yearbook (Barcelona: European Institute of the Mediterranean, 2014), pp. 125-32, 2015 

University of Washington School of Law Research Paper No. 2015-24 

Abstract:    
Prior to the Arab Spring uprisings of 2011, Arab liberals and international donors interested in promoting democratization encouraged authoritarian states in the MENA region to adopt and strengthen the institution of judicial review. After the Arab Spring, they doubled down on their efforts. If democracy advocates hoped constitutional courts would encourage the region’s halting transitions to democracy, they were to be disappointed. After the initial enthusiasm of the Arab Spring, democratization had by 2014 stalled in the Arab Mediterranean. The region’s constitutional courts were doing little to restart it; and indeed, in at least one country some accused courts of hindering a messy but real move towards democracy. Liberals and donor states may have been disappointed, but they should perhaps not have been surprised. The assumption that constitutional review is synergistic with democracy is a relatively new development, dating largely from the second half of the twentieth century. The assumption has not gone unchallenged. Over the past decade, legal scholars and social scientists have voiced skepticism about the assumption that politically insulated constitutional courts are likely to embrace and protect quick transitions from authoritarian government to liberal democracy. Recent behavior by constitutional courts in the Arab Mediterranean provides these skeptics with ammunition. Some have proved ineffective at policing government action in a time of political passion, because they lack of popular legitimacy. Other, more powerful courts seem to have worried that rapid democratization will lead to the replacement of a flawed but predictable authoritarian by a tyrannical and unpredictable majority government. Whatever the reason, constitutional courts in the MENA region have not supported rapid democratization in the wake of the Arab Spring. It remains to be seen whether over the longer term they will come to play a productive role as agents of more gradual democratization.



Keywords: Constitutional Law, Judicial Review, Constitutional Review, Authoritarian Constitutions, Democratization, Rule of Law, Arab Spring, MENA, Middle East, Egypt, Tunisia, Syria

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2638433

A Supreme Court's Place in the Constitutional Order – Contrasting Recent Experiences in Canada and the United Kingdom

Paul Daly 

University of Montreal - Faculty of Law

August 4, 2015

Queen's Law Journal, Forthcoming 

Abstract:    
There is a wealth of recent cases and commentary on the constitutional roles of two important common law supreme courts: the Supreme Court of Canada and the United Kingdom Supreme Court. Both have recently expressed distinctive understandings of their positions in their respective constitutional orders, drawing in part on supporting narratives by way of justification.

What emerges is that the Canadian high court is much clearer about its constitutional role. Recently, it confirmed beyond all doubt its entrenchment in the Canadian Constitution, weaving together a supporting narrative that allowed the Court to describe itself both as a neutral arbiter of disputes relating to federalism and human rights, and as a champion of the distinct values of the province of Quebec. By contrast, the UK Supreme Court has found it much more difficult to identify its place in the constitutional order, most notably in the area of rights protection. In a series of recent decisions, it has emphasized its fundamental role in expounding the common law. In doing so, it has relied on a narrative that venerates the common law and describes the Court as a protector of home-grown constitutional values.

My comparison reveals three points of particular interest. First, the framework for constitutional change in Canada was much more favourable to the Supreme Court of Canada, in part because of several of its own decisions, whereas its UK counterpart has never really been in a position from which it could formally complicate the process of constitutional reform. Second, the Supreme Court of Canada’s institutional position as arbiter of fundamental constitutional disagreements has long been undisputed, whereas the UK Supreme Court has operated in the shadow of the Strasbourg-based European Court of Human Rights. Recent Canadian history also indicates that the UK Supreme Court’s claims to the guardianship of the domestic constitutional tradition are likely to increase in both number and force Third, narratives that lawyers develop about their legal traditions influence the substantive law, but these narratives must be viewed critically, because they are often contingent on context and may not always reveal the whole story. Recent developments in Canada and the UK were not quite as inevitable as the supporting narratives developed by their high courts would have the reader believe.


Keywords: Supreme Court of Canada, United Kingdom Supreme Court, entrenchment, narratives, constitutional interpretation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639945

Comparative Legal Cultural Analyses of International Economic Law: A New Methodological Approach

Colin B. Picker 

University of New South Wales (UNSW) - Faculty of Law

January 1, 2013

1 Chinese J. Comp. L. 21-48 (2013) 

Abstract:    
The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. That conflictual interaction can impede or block the success of that law. While present in domestic legal systems, those conflicts are more likely and the conflicts may be deeper between the many different legal cultures involved in the international legal order. Identification of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential conflicts between opposing legal cultural characteristics. That identification requires examination of the relevant legal systems with legal culture in mind—a legal cultural analysis. But, that methodology is rarely employed. To the extent we do see legal cultural analyses, they are applied almost exclusively in the domestic arena. When it is applied across legal systems it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches is unusual, indeed almost unheard of in the international legal arena. This article explores that methodology, to argue that it is possible and valuable.


Keywords: international economic law; IEL; culture; comparative; trade; investment

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641416

EU Law without the Rule of Law:

Is the Veneration of Autonomy Worth it?

Dimitry Kochenov 

Woodrow Wilson School; University of Groningen - Faculty of Law

August 12, 2015

34 YEL 2015 (forthcoming) 

Abstract:      

This is a critical analysis of the Rule of Law in the EU, concluding that the Union is not driven by the Rule of Law as an institutional ideal. Instead, the Union deploys the “Rule of Law”, viewed to a large extent through the lens of the autonomy of the EU legal order, to shield itself from potential internal and external contestation. This is precisely the contrary to what the classical understanding of the Rule of Law would imply. The Union thus suffers, it is argued, as a result of misrepresenting legality at the EU level, selling it to friendly observers under the label of the “Rule of Law”, while compelling reasons exist to distinguish the two. To do so, Gianluigi Palombella’s vision of the Rule of Law as an institutional ideal is employed, implying that the law – gubernaculum – should always be controlled by other law – jurisdictio – lying outwith the sovereign’s reach. Unable to boast any jurisdictio expressly intended as the legal aspect of positive law beyond the internal market logic programmed into the Treaties, the EU emerges as a somewhat rudimentary legal system, with no strong guarantees of legal non-domination extending beyond the Treaty text. The paper demonstrates the clear negative consequences of the prevalent deficient understanding of the Rule of Law for both constitutional levels: the EU and the Member States. One of the curious outcomes of the current reading of the Rule of Law in the EU is that this principle can be presented as demanding to trump the values of the Treaties as well as of the national constitutions in the name of upholding formal organisational considerations seemingly underpinning the EU legal system, resulting in anarchical confusion.

Keywords: EU Law, Rule of Law, Autonomy, Human Rights, ECHR, Loyalty, Article 2 TEU, Opinion 2/13, CJEU, democracy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642689