International Journal of Constitutional Law - current issue

Preface: The role of constitutional scholarship in comparative perspective: An exchange among Armin von Bogdandy, Robert Post, Mattias Kumm, and Alexander Somek

Rosenfeld, M. — 2009-06-29

The past and promise of doctrinal constructivism: A strategy for responding to the challenges facing constitutional scholarship in Europe

von Bogdandy, A. — 2009-06-29

Doctrine, although challenged from its very beginnings as scientifically unsound, politically conservative, or socially irresponsible, forms the heart of constitutional scholarship in Europe. This article presents the development of legal doctrine in the twentieth century among the various national systems; it focuses not only on the elements in common but also on the particularities and idiosyncrasies of the individual systems. The aim is to suggest a strategy for responding to three contemporary challenges to the national scholarly cultures: the project of a European research area; the rapid development of a European legal area now faced with an ever-greater number of issues of constitutional importance; and the low regard accorded to doctrine by leading U.S. institutions. In light of these challenges, the article proposes a more fully evolved version of the traditional understanding of doctrine, presented here under the rubric "doctrinal constructivism." It is proposed that this become the focus of a yet-to-be-created discipline of European constitutional scholarship, which will define both its role and identity. Constitutional scholarship in the European legal area, thus, should reposition itself, focused on but not limited to doctrinal constructivism.

On the past and future of European constitutional scholarship

Kumm, M. — 2009-06-29

This comment takes issue with three claims made by Armin von Bogdandy about the role of "doctrinal constructivism" as it relates to the European public law tradition. First, the rise of constitutional law as a subdiscipline of law is not plausibly explained by the adoption of a conceptually focused positivist method. Its successful institutionalization within the law faculties has depended, first and foremost, on the establishment of a relatively stable constitutional settlement. The nature of that settlement, rather than the virtues intrinsic to any particular methodology, is the most influential factor in determining what kind of methodology becomes dominant. Second, it is probably misleading to characterize mainstream contemporary European legal scholarship as doctrinal constructivism. If the varieties of legal scholarship that count as mainstream in Europe today have a common core, it consists of a rejection of the reductivism that has classified law and legal scholarship as either formal/conceptual, moral, or empirical/factual. European legal scholarship seeks, for the most part, to integrate the formal, empirical, and moral dimensions of the law into a distinctively legal point of view. In that sense, it has always been—even in Germany—far more open to interdisciplinary and theoretical work than von Bogdandy's account suggests. Third, while he correctly describes an interesting and deep difference between contemporary European and American cultures of legal scholarship and teaching—a difference that is apparent to anyone who has experienced both—von Bogdandy has overlooked the salutary effect of American elite law school culture on European scholarship. It has encouraged European scholars to overcome the residual habits of a conceptually focused positivist complacency and more widely reembrace the study of law as a theoretically ambitious, internally multidisciplinary exercise.

Constitutional scholarship in the United States

Post, R. C. — 2009-06-29

The status and character of constitutional scholarship depends upon the nature of constitutional law. In the United States, the content of constitutional law is typically negotiated within a dialogue between the Supreme Court and the American people. Constitutional scholarship accordingly seeks to mediate this dialogue by clarifying the systematic and jurisprudential implications of potential constitutional developments. In Europe, constitutional law is more independent of political dialogue; hence constitutional scholarship is relatively more autonomous. Whereas European constitutional scholars imagine their project as the development of an apolitical and internally coherent structure of constitutional norms, American constitutional scholars tend to develop theory in the context of its practical implications for case-by-case adjudication.

The indelible science of law

Somek, A. — 2009-06-29

It is often remarked that, with the rise of the judicial resolution of constitutional questions, European constitutional systems have come to resemble a variation on the common law, as cases decided by constitutional tribunals appear to be imbued with an oracular quality with regard to constitutional meaning. Notwithstanding this widespread assimilation of a common law mindset, there is value in an older tradition of legal science that persists in some circles—primarily in Continental Europe—and forms the backbone of legal education and scholarship. Where the tradition persists, case law may be relevant, and authoritative, only if the ideas it produces can be ratified on the basis of a "scientific" structure of conceptual differentiation. This approach—which might be described as the pursuit of excellence in thinking—is not a mere intellectual conceit; rather, this essay argues, in a "postdemocratic" era, legal science may offer opportunities for empowerment of a public that finds itself disenfranchised by overconfident courts.

The rule of law beyond the state: Failures, promises, and theory

Palombella, G. — 2009-06-29

Resorting to the "rule of law" within the traditional environment of international law generates difficulties, especially when circumstances require us to square the circle by accommodating normative claims with state legal orders, fundamental rights, and democracy. Unsurprisingly, in recent cases brought before supranational courts, such as the European Court of Justice (Kadì and Al Baarakat, for example), or domestic courts, such as the United States Supreme Court (Hamdan, for example), the import and notion of the rule of law have been interpreted in ways that reveal the uncertainty surrounding the concept and the rather idiosyncratic or instrumental uses to which it is put. Through the analysis of such instances, this article proposes a restatement of the rule of law that better explains its use beyond state borders. Then, it shows how the relation between different orders, as a factual matter, does not obey some monist hierarchy and does not even reflect the logic of the "dualism" of self-contained systems. Given that the autonomy of legal orders is a vital contemporary reality, confrontation between them and with international law appears to be replacing the formal primacy of sources as well as blind or dogmatic closure by content-dependent constitutional assessments. In this connection, a road taken in the European environment shows that communicative pluralism can embark on a practice of giving reasons inherently capable of producing common standards, the rule of law, and thin lines of principle. All of these factors are ingredients that might finally evolve further into a rule of recognition for the international legal order.

Proportionality: An assault on human rights?

Tsakyrakis, S. — 2009-06-29

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamental rights. The European Court of Human Rights routinely balances human rights against each other and against conflicting public interests; it has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights (ECHR). This paper examines the debate on balancing in the context of American constitutional law and the convention and discusses theories that claim some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes, and it suggests that courts should focus, instead, on the real moral issues underlying such disputes.

The crisis of the secular state--A reply to Professor Sajo

Zucca, L. — 2009-06-29

The failure of the European Constitution ignited two apparently independent debates, on the future of European states and on the place of Christian values in the European public sphere. In recent years, the latter question has become more and more burning; so much so that the future of European secular states is considered to depend to a great extent on its ability to cope with the alleged threat of religion. Responding to an essay by András Sajó, Preliminaries to a Concept of Constitutional Secularism, which appeared in I•CON in October of 2008, this paper distinguishes two competing theories of the place of religion in Europe and suggests that the best understanding of secularism does not exclude religious minorities from the public sphere. European states should develop a common secular position that articulates and promotes conditions of coexistence and communication.

The crisis that was not there: Notes on A reply

Sajo, A. — 2009-06-29

In this response to Lorenzo Zucca's critique (... A reply to Professor Sajó) of his 2008 article, Preliminaries to a Concept of Constitutional Secularism, Professor Sajó pronounces himself grateful for the opportunity to examine specific examples of the rationales being advanced in order to "create a space for special practices that do not conform to constitutional values." At the end of the day, he remains persuaded of the dangers of including religious phraseology and concepts in law that would give "too much aid and comfort" to already privileged religious organizations, in the name of free exercise of religion.

European Committee of Social Rights: The right to a healthy environment

Trilsch, M. — 2009-06-29

Luxembourg: Parliament abolishes royal confirmation of laws

Frieden, L. — 2009-06-29

Alexander Somek, Individualism. Oxford University Press, 2008

Menendez, A. J. — 2009-06-29

Books recently received in the I*CON editorial offices

2009-06-29