Proportionality increasingly dominates legal imagination. Its spread, accompanied by a global paradigm of constitutional rights, appears to be an irresistible natural development. Today, proportionality is perceived as a model of legal reasoning or even an emerging global grammar of constitutional adjudication. During the last decades, it has been at the core of a prescriptive human rights theory first developed in the work of Robert Alexy and claiming universal application. In comparative law, proportionality is a commonly used example of a legal transplant that attests to the convergence between legal systems, if not globally, at least within Europe. Continue reading
Tag Archives: Constitutional Theory
Böckenförde on the Constituent Power of the People
The recent translation and edition of Ernst-Wolfgang Böckenförde’s work into English by Mirjam KĂŒnkler and Tine Stein represents an important impulse for the reception of a still marginal author in Anglo-Saxon constitutional theory. Böckenförde’s notable absence in the Anglo-Saxon debate so far has produced an artificial division between Anglo-Saxon and German constitutional theory. That division has weakened the understanding of important developments in Germany and obscured its connections with Anglo-American theory. The broad and competent translation of Böckenförde by Oxford University Press could now help to link German constitutional theory under the Grundgesetz to Anglo-Saxon constitutional theory, from which other legal traditions can draw important lessons. Continue reading
Can a Deliberative Constitutional Court Enhance Democracy?
Contemporary democracies ascribe to constitutional courts, among other things, the pivotal role of protecting and implementing rights against the background of electoral politics. That task was arguably played, over the past decades, with varying degrees of success. At the same time, these courts have gradually occupied a major political space. This has generated a significant revival of the age-old question about the democratic legitimacy of constitutional review, an arrangement that empowers unelected judges to control decisions by parliamentary representatives. Continue reading
Progressing towards a Cosmopolitan Condition – Kantâs Ideal for the Formal Unity of International Law
There is a way in which great thinkers remain contemporary. This, I believe, is in virtue of the possibility of a continuous re-actualization of their thought in view of contemporary challenges. It is in this sense that I consider Kantâs cosmopolitan theory as guiding our understanding of the standards of the legitimacy of international law. Continue reading
What Judges Donât Say – Judicial Strategy and Constitutional Theory
Constitutional courts have become an almost universal solution to a perennial anxiety of democratic regimes, promising to reign in the excesses of majoritarian politics. Yet, however insulated from other branches of government courts are intended to be, their power is not exercised in a politics-free zone, and concerns over their political effectiveness, if not bare survival, accompany constitutional courts everywhere. Continue reading