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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. Nick Huls is a Professor of socio-legal
studies at the Faculty of Law of the Erasmus University Rotterdam
and Leiden University's Faculty of Law, The Netherlands. Maurice
Adams is a Professor of law at Tilburg University, The Netherlands,
and part-time Professor of comparative law at Antwerp University in
Belgium. JaccoBomhoff is a Lecturer in law at the Law Department of
the London School of Economics in the UK.
This collection explores some of the many ways in which
constitutional orders engage with, and are shaped by, their
exteriors. Constitutional and legal theory often marginalize
'foreign' elements, such as norms originating in other legal
systems, the movement of individuals across borders, or the
application of domestic law to foreign affairs. In The
Double-Facing Constitution, these instances of boundary crossing
lie at the heart of an alternative understanding of constitutions
as permeable membranes, through which norms can and sometimes must
travel. Constitutional orders are facing both inwards and outwards
- and the outside world influences their interiors just as much as
their internal orders help shape their surroundings. Different
essays discuss the theoretical and historical foundations of this
view (grounded in Kelsen, Hobbes, Locke, Rousseau and others), and
its contemporary relevance for areas as diverse as migration law,
the conflict of laws, and foreign relations law.
What does doing comparative law involve? Too often, explicit
methodological discussions in comparative law remain limited to the
level of pure theory, neglecting to test out critiques and
recommendations on concrete issues. This book bridges this gap
between theory and practice in comparative legal studies. Essays by
both established and younger comparative lawyers reflect on the
methodological challenges arising in their own work and in work in
their area. Taken together, they offer clear recommendations for,
and critical reflection on, a wide range of innovative comparative
research projects.
The language of balancing is pervasive in constitutional rights
jurisprudence around the world. In this book, Jacco Bomhoff offers
a comparative and historical account of the origins and meanings of
this talismanic form of language, and of the legal discourse to
which it is central. Contemporary discussion has tended to see the
increasing use of balancing as the manifestation of a globalization
of constitutional law. This book is the first to argue that
'balancing' has always meant radically different things in
different settings. Bomhoff uses detailed case studies of early
post-war US and German constitutional jurisprudence to show that
the same unique language expresses both biting scepticism and
profound faith in law and adjudication, and both deep pessimism and
high aspirations for constitutional rights. An understanding of
these radically different meanings is essential for any evaluation
of the work of constitutional courts today.
The language of balancing is pervasive in constitutional rights
jurisprudence around the world. In this book, Jacco Bomhoff offers
a comparative and historical account of the origins and meanings of
this talismanic form of language, and of the legal discourse to
which it is central. Contemporary discussion has tended to see the
increasing use of balancing as the manifestation of a globalization
of constitutional law. This book is the first to argue that
'balancing' has always meant radically different things in
different settings. Bomhoff uses detailed case studies of early
post-war US and German constitutional jurisprudence to show that
the same unique language expresses both biting scepticism and
profound faith in law and adjudication, and both deep pessimism and
high aspirations for constitutional rights. An understanding of
these radically different meanings is essential for any evaluation
of the work of constitutional courts today.
What does doing comparative law involve? Too often, explicit
methodological discussions in comparative law remain limited to the
level of pure theory, neglecting to test out critiques and
recommendations on concrete issues. This book bridges this gap
between theory and practice in comparative legal studies. Essays by
both established and younger comparative lawyers reflect on the
methodological challenges arising in their own work and in work in
their area. Taken together, they offer clear recommendations for,
and critical reflection on, a wide range of innovative comparative
research projects.
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