Comparative Constitutional Reasoning

A large-scale comparative work of leading cases examines judicial constitutional reasoning in eighteen different legal systems globally.

The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Different labels have been attached to the same phenomenon: judges drawing inspiration from outside of their national legal systems for solving purely domestic disputes. By doing so, the judges are said to engage in cross-border judicial dialogues. They are creating a larger, transnational community of judges. This book puts similar claims to test in relation to highest national jurisdictions (supreme and constitutional courts) in Europe today. How often and why do judges choose to draw inspiration from foreign materials in solving domestic cases? The book addresses these questions from both an empirical and a theoretical angle. Empirically, the genuine use of comparative arguments by national highest courts in five European jurisdictions is examined: England and Wales, France, Germany, the Czech Republic, and Slovakia. On the basis of comparative discussion of the practice and its national theoretical underpinning in these and partially also in other European systems, an overreaching theoretical framework for the current judicial use of comparative arguments is developed. Drawing on the author's own past judicial experience in a national supreme court, this book is a critical account of judicial engagement with foreign authority in Europe today. The sober middle ground inductively conceptualized and presented in this book provides solid jurisprudential foundations for the ongoing use of comparative arguments by courts as well as its further scholarly discussion.

Provides a systematic analysis of both the historical development and current interpretation of constitutional law discourse in Europe.

This book is about judicial reasoning in human rights cases. The aim is to explore the question: how is it that notionally universal norms are reasoned by courts in such significantly different ways? What is the shape of this reasoning; which techniques are common across the transnational jurisprudence; and which are particular? The book, comprising contributions by a team of world-leading human rights scholars, moves beyond simply addressing the institutional questions concerning courts and human rights, which often dominate discussions of this kind, seeking instead a deeper examination of the similarities and divergence of reasonings by different courts when addressing comparable human rights questions. These differences, while partly influenced by institutional concerns, cannot be attributed to them alone. This book explores the diverse and rich underlying spectrum of human rights reasoning, as a distinctive and particular form of legal reasoning, evident in the case studies across the selected jurisdictions.

This first-of-its-kind volume surveys twenty constitutional judges who 'towered' over their peers, exploring their complexities and flaws.

This volume explores how national and international human rights courts interpret and apply human dignity. The book tracks the increasing deployment of the concept of human dignity within national and international courts in recent decades. It identifies how human-dignity-based arguments have expanded to cover larger sets of cases: from the right to life or to integrity or anti-discrimination, the concept has surfaced in disputes about political and social rights and rule of law requirements, such as equality or legal certainty. The core message of the book is that judges understand, interpret, and apply human dignity differently. An inflation in the judicial recourse to human dignity can saturate the legal environment, depriving the concepts as well as human-rights-based narratives of salience, and threaten the predictability of court decisions. The book will appeal to philosophers of law, constitutional theorists and lawyers, legal comparativists, and internal law specialists. Whilst being dedicated specifically to human dignity jurisprudence, the book touches on many aspects of judiciary and as such will also be of interest to researchers studying legal reasoning, interpretation and application of the law and courts, as well as social philosophers, political scientists, and sociologists of law, politics, and religion.

Food, water, health, housing, and education are fundamental to human freedom and dignity, yet only recently have legal systems begun to secure these fundamental individual interests as rights. This book analyses the transformation of socio-economic rights into constitutional rights, and their impact on public law and constitutional theory.

Implied constitutional principles form part of the landscape of the development of fundamental rights in common law jurisdictions, affecting issues ranging from the remuneration of judges to the appropriation of property by the state. Principled Reasoning in Human Rights Adjudication offers thematic analysis of the use of the implied constitutional principles of the rule of law and separation of powers in human rights cases. The book examines the functions played by those principles in rights adjudication in Australia, Canada, the Commonwealth Caribbean, and the United Kingdom. It argues that a complete understanding of implied constitutional principles requires thoroughgoing analysis of the sources and methods of implication and of the specific roles played by such principles in the adjudicative process. By disaggregating particular functions and placing those functions within their respective institutional contexts, this book develops an understanding of the features of cases in which implied constitutional principles are invoked and the work done by those principles.