How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

Back to the future of abortion law: Roe's rejection of America's history and traditions

In Roe v. Wade much of Justice Blackmun's judgment was devoted to the history of abortion in Anglo-American law. He concluded that a constitutional right to abortion was consistent with that history. In Webster v. Reproductive Health Services, 281 American historians signed an amicus brief which claimed that Roe was consistent with the nation's history and traditions. This article respectfully questions Justice Blackmun's conclusion and the historians' claim.     

Understanding Law as a Democratic Institution Through US Constitutional Development

Gillman, Howard, Mark Graber, and Keith Whittington. 2012 . American Constitutionalism: Volume I: Structures of Government . New York: Oxford University Press. Gillman, Howard, Mark Graber, and Keith Whittington. 2012 . American Constitutionalism: Volume II: Rights and Liberties . New York: Oxford University Press. This essay reviews Howard Gillman, Mark Graber, and Keith Whittington, American Constitutionalism: Volume I: Structures of Government (New York: Oxford University Press, 2012), and Howard Gillman, Mark Graber, and Keith Whittington, American Constitutionalism: Volume II: Rights and Liberties (New York: Oxford University Press, 2012). It defends developmental approaches in the study of US constitutional law. It explains how law has been studied in political science, illustrating how political development became part of the story. It outlines how American political development approaches work when applied to law, noting how studying law transforms these approaches. It notes the insights produced through the blending of American political development and constitutional law, explaining how these insights provide more leverage for understanding the role of courts as democratic institutions. The essay closes by discussing the promising directions these approaches suggest, defending their value beyond political science.     

Queer Legal History: A Field Grows Up and Comes Out

This essay examines recent scholarship on the legal history of sexuality in the United States. It focuses on Margot Canaday's The Straight State: Sexuality and Citizenship in Modern America (2009) and Marc Stein's Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010). It also reviews recent work on the history of marriage, including Sarah Barringer Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) and George Chauncey's Why Marriage? The History Shaping Today's Debate Over Gay Equality (2004), and the history of military law Defending America: Military Culture and the Cold‐War Court Martial (2005), by Elizabeth Lutes Hillman. The essay argues that this scholarship is significant because it offers a different view of sex and power than the one derived from the early writing of Michel Foucault. “Queer legal history” treats the liberalism of the 1960s‐1970s as sexually discriminatory as well as liberatory. It underlines the exclusions that were part of public policy under the federal G.I. Bill and the New Deal welfare state.     

Taking the Constitution Out of the Common Law: Political Libels and Freedom of Communication in Australia

This paper argues that English courts should adopt a recent Australian innitiative in the area of political libels. It is suggested that English law is at present too accommodating to defamed politicians and insufficiently sensitive to the need to foster freedom of political expression. The paper contends that Australian law, unlike similar rules found in American constitutional law, offer our courts an unproblematic way to re-order this aspect of our common law in a fashion that better serves the political values of transparency and accountability within the government process.     

The rule of law as the lodestar of the European Convention on Human Rights: The Strasbourg Court and the independence of the judiciary

The rule of law is a constitutional principle under the European Convention on Human Rights. Throughout its history, the rule of law has been the lodestar guiding the development of the case-law of the European Court of Human Rights. In recent years, the normative impact of this principle has been increasing in the case-law of the Court, in particular in cases dealing with the independence of the judiciary. The article discusses the conceptual core of the rule of law under the Convention system as a fundamental component of “European public order”. Subsequently, the three-dimensional normative status of the rule of law is explored as well as the Court's statement that the principle is “inherent in all the Articles of the Convention”. On this basis, an in-depth analysis is undertaken of the application in recent Strasbourg case-law of the independence of the judiciary as a fundamental organic component of the rule of law. Finally, the author reflects on the “symbiotic” relationship in the field of judicial independence between the Strasbourg Court and the Court of Justice of the European Union.     

Chronicling National Assembly committees as markers of institutional change

This article examines changes to the National Assembly for Wales committees and how they act as markers that help explain the dynamics of a significant and contemporaneous constitutional journey. It uses as its backdrop recent constitutional and political change in the UK, particularly that initiated by devolution. Uniquely, we draw upon management theory as well as political science to explain why changes in the focus, identity and profile of Assembly committees represent significant markers or reflectors of constitutional shifts. We suggest that examining key components within the internal architecture of parliaments at different stages of development offers an additional and complementary level of institutional analysis. Our review of the Assembly committees reveals that they have reflected the pace and shape of change in Welsh devolution, and that shifts in their profile and operation offer another insight into devolution, whilst also reflecting wider institutional and political change.     

Social and social scientific perspectives in judicial interpretations of the constitution

It has been traditional to demarcateMuller v. Oregon as the first Supreme Court case to benefit from a social science perspective andBrown v. Board of Education of Topeka as the first case to rely on social science evidence. This article explores the hypothesis that social perspectives have long been a part of the Court's decisionmaking when it has confronted difficult social issues. Two 19th-century race opinions,Dred Scott v. Sandford andPlessy v. Ferguson, are used to support this position. The authors suggest that the social perspectives contained in the other articles in this special issue reflect a long-standing association between social science information and law.We appreciate the suggestions made by Michael J. Saks on an earlier draft of this article.     

Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration

Abstract: The interdisciplinary discourse on European law seems paradoxical. While the editors of this Journal plead for a contextual jurisprudence, political scientists are discovering the importance of law for the integration process. This article explores the merits and problems of both of these shifts¹. On the one hand, it points to implicit assumptions of legal arguments that need to be contrasted with the insights of political sciences into mechanisms of integration processes and the functioning of inter-governmental bargaining - and is thus to be read as an appeal for a 'contextual' jurisprudence. On the other hand, it argues that political science analyses, even when they take the legal dimension of European integration into account, tend to rely upon an instrumentalist view of the legal system which fails to acknowledge the Law's normative logic and discursive power. This theoretically complex argument is exemplified first by an analysis of the tensions between the legal supranationalism of the European Court of Justice and the German Constitutional Court's defence of national constitutionalism, already intensively discussed in this Journal². What the article adds is an extension of the constitutional debate to the economy. It argues that Europe cannot, and should not, be based upon a dichotomous structure of (national) political rights and (European) economic liberties.     

Hard Times for Hard Bans: Fixed‐Term Work and So‐Called Non‐Regression Clauses in the Era of Flexicurity

This paper deals with the issue of non‐regression clauses, which, despite a twenty‐year history, has been addressed by domestic and European case law only recently, and only with regard to the field of flexible employment. This essay argues that the Court of Justice case law on non‐regression clauses (the Mangold and Angelidaki rulings) leads to a weakening of these instruments, rendering them ineffective. This ineffectiveness is due to the controversial idea of Fixed‐Term Work in the era of flexicurity, and to the difficult justiciability of the particular clause in itself, as demonstrated by the most recent Court of Justice's ruling, Sorge. In addition, this essay provides an explanation of the difficult enforcement of non‐regression clauses, in light of the new course of European employment policies.     

Activism and Popular Constitutionalism in Contemporary Vietnam

Based on Chinese constitutional analysis, political science, and law and society studies, we argue that work extending the application of popular constitutionalism to authoritarian states applies in Vietnam, as popular constitutionalism targets sites relevant to constitutional reform. We contend that popular constitutionalism located in authoritarian states requires three factors: a tradition of activism, space for reformist and pragmatic dialogue targeting constitutional change, and the political need for legitimacy. This article analyses activism in Vietnam, focusing on the lodging of Petition 72 with the Constitutional Amendment Drafting Commission in 2013, and the resulting responses. We conclude that this activism was pivotal in advocating for new constitutional norms, evidencing popular constitutionalism in Vietnam. The long history of Vietnamese scholar activism, the relative space for governance debates, and the political need for legitimacy made this possible. We also note that popular constitutionalism faces constraints in authoritarian states, which may shape its trajectory.     

The political morality of convergence in contract

One of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory. The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its moral impetus as one that should underwrite contract law in all states, especially liberal states. But the essay argues that the legitimate contours of the formal right are contingent on tenets of political culture that vary across Member States. Similarly, substantive regulation of contract is morally compulsory and serves universal interests; the essay takes regulation of permissible work and remuneration for work as examples. But the rules and standards that best advance those moral interests depend on economic facts specific to individual political communities. The essay concludes by arguing that contract law is a poor tool by which to accelerate political and economic convergence.     

Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts

As “oracles of the law,” judges are trained to provide certainty and guidance within an often‐uncertain legal landscape. Nowhere is this statement truer than in the civil law tradition, where the idea of legal certainty has been prized as a “supreme value.” Despite this tradition, dissenting opinions are now quite common within most European constitutional courts. Using new data from five countries and interviews with constitutional court judges and clerks, I investigate factors that contribute to dissent on constitutional courts. Results indicate that legal and policy characteristics matter, but so do judicial backgrounds and the issues reviewed.     

Eclipse of the Constitution {Europe Nouveau Siècle}

The Court of Justice of the European Union has come to adopt a peculiar mode of balancing, revolving around a set of ‘general principles of law’, which results in key social rights at the core of the postwar constitutional settlement no longer being sheltered from review by reference to supranational economic freedoms. It is submitted that this does not only imply a kind of ideological restyling of European law, as noted in the literature but, more fundamentally, the erosion of Europe's composite constitutional architecture (at once European and national) resulting from playing down social rights qua ‘constitutional essentials’. As the new jurisprudence ‘obscures’ Europe's constitutional constellation, it is submitted that the Court should rule under the constitution and not over it.     

Judging gender: difference and dissent at the Supreme Court of Canada

Over 25 years ago, Justice Bertha Wilson asked “Will women judges really make a difference?” Taking up her question, we consider the place of difference in gender and judging. Our focus is on those ‘differences of opinion’ between judges that take the form of written and published judicial dissent. We present and interrogate recent statistics about practices of dissent on the Supreme Court of Canada in relation to gender. The statistics are provocative, but do not provide straightforward answers about gender and judging. They do, however, pose new questions, and suggest the importance of better theorizing and exploring the space of dissent.     

Teaching Dissent in the Law School: Have Students Learned to Disagree?

This paper offers an analysis of the qualitative evidence obtained from a research project in relation to the teaching of a module on the Trials of Dissenters in the context of an undergraduate law degree. It will consider whether a pedagogically innovative course has encouraged and enabled undergraduate law students to think more creatively on the issues raised by specific historic trials and to be prepared to construct more critical and open ended arguments. The study of the Trials of Dissenters, we hoped, would encourage our students to dissent both from the standard model of legal education and from the acceptance of what lecturers say as “true”. We here consider the success of our project in relation to how students view dissent.     

合宪性推定的正当性

合宪性推定是宪法审查中一种重要方法。其最初起源于美国，尔后逐渐被德国、日本、澳大利亚等法治国所采用。国内目前对于合宪性推定方法的认识尚有不足，在一定程度上影响了宪法审查制度的有效运作。对于合宪性推定方法的借鉴，不在于简单移植，重点在于从一般原理的角度来探求其所存在的正当性基础。从人权价值、规范体系、经济理性等多角度对合宪性推定的正当性进行论证，可发现合宪性推定是一种原理性的宪法方法，根基于宪法的最高性、法官的经济理性、人权的目的性、国家权力的手段性等。合宪性推定的正当性论证，在折射出目前宪法方法的贫瘠的同时，也有助于摆脱宪法文本浪漫主义的方法论困境，进而体现出宪法方法兼具政治与法律的特性。     

Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.     

祛魅与自足:政治理论对宪法解释的影响及其限度

宪法学究其根本是为了适用宪法而对宪法文本进行解释的宪法释义学。但是,由于宪法文本的不确定性,在宪法解释中纳入政治的考量是不可避免的。对于同样的宪法条款,在不同的政治理论引导下,会得出完全不同的解释结果。考察政治理论对宪法解释的影响是一种社会科学对法学的逻辑自足的祛魅,是有价值的。但是,随意选择作为宪法解释“背景规范”的政治理论,会导致解释的恣意,损害法的安定性价值。所以,必须根植于本国的制宪历史、规范环境和宪法文本去容纳政治理论论证这种“外部论证”,消解其对宪法解释确定性的损害。     

迈向专业化的中国宪法学——以2006年发表的部分宪法学学术论文的分析为例

本文以2006年发表的宪法学论文的实证分析为基础,以中国社会转型与宪法学功能的相互关系为视角,介绍了宪法学研究取得的新进展,分析了宪法学研究中存在的问题,并就如何进一步提高宪法学的专业化水平提出了建议。