Identifying Constitutional Law

Empirical research in comparative constitutional law has largely relied on coding countries’ “large-C” constitution. The potential biases associated with approach to coding constitutional law has been repeatedly raised as a criticism of this line of research. That said, incorporating small-c constitutional sources into empirical comparative constitutional law research first requires developing an approach to systematically identifying small-c constitutional laws. We outline three possible approaches for doing so: (1) Entrenchment Approaches, which emphasize entrenchment as the defining feature of constitutions and constitutional law; (2) External Approaches, which emphasize core constitutional functions, such as structuring and limiting government and rights; and (3) Internal Approaches, which emphasize local understandings of the constitution and constitutional law. We argue that which approach is most suitable depends on the objectives of the comparative research project.

The use of foreign precedents by constitutional judges: recent developments.

In this article, I will offer a series of reflections on the role of precedent in constitutional decision making by examine the role that local and foreign precedents plays in that task in Argentina.

In part I I present a brief historic account to provide a minimum context for those who have a scarce knowledge of the country. Part II identifies Argentina´s legal culture as one belonging to the Civil Law tradition. Argentina wanted to detach from its Spanish heritage, but all extant law and institutions were Spanish. Those features are indispensable to understand why Argentina is, in fact something in between both traditions. Part III is devoted to exploring how Argentine courts functioned at that time, the changes the legal community wanted to introduce, and the countries the courts were looking to for inspiration. I will examine how the court system, mainly at the Supreme Court level, implemented demands to treat judicial cases alike ant to publicize judicial decisions.

On the search for a normative justification for judicial borrowings: between particularism and universalism

This article objects to both the strong universalist thesis, according to which judicial borrowings are inevitable, and the extreme particularist thesis, according to which they are not possible. To each thesis corresponds a judicial attitude of enthusiasm or resistance, respectively. Against these theses, I shall claim that: (1) empirically, borrowings are always fraught with a loss of exactness, which does not make them impossible, since a minimum standard of equivalence is guaranteed; and (2) normatively, borrowings may be necessary due to reasons that are either conceptual, normative (in the narrow sense) or teleological. Yet, those reasons have to be found in both the system of destination and the element that is borrowed. Therefore, contrary to extreme particularism, judicial borrowings are empirically possible, but contrary to strong universalism, they are not conceptually necessary everywhere.

New paradigms for State liability: how global crisis have changed the traditional approaches to State liability

The evolution of State liability has shown a trend towards the recognition of advanced forms of public actors’ liability vis-à-vis citizens. Global crises as well as the disruptive use of technologies in public decision making have, however, impacted liability regimes of public authorities in various ways, often by restricting the scope and extent of liability. The paper aims to offer a comparative overview of the changes that liability regimes have underwent as a consequence of the climate crisis, the global health crisis and use of AI in public decision making.

Elgar Research Handbook on Constitutional Interpretation

Accounts of constitutional interpretation in comparative constitutional law consist of literatures drawing on Bobbitt’s account of US constitutional interpretation rooted in interpretive tools (text, purpose, history & precedent, principle, structure) & describing constitutional court jurisprudence in strategic terms in which interpretation is secondary. This paper bridges these different approaches & builds a contemporary account around: (a) the overarching political & legal context of the court (peace & transitional justice, federalism, aversive constitutionalism, democratic backsliding, social transformation, popular constitutionalism & the dominant legal professional culture), (b) internal aids (statutory v. constitutional interpretation, living constitutionalism, text/history/precedent, purposive/teleological interpretation, founding provisions & preambles, directive principles, unamendability) & (c) external aids (regional human rights treaties & courts, & international law).

The wishful lexicon of constitutions on public administration: A comparative text analysis

Public administration is a global industry that employs half a billion people and covid-19 reminded us of its importance. Public administration is shaped by public law. It is topical then that public law be effective in shaping public administration. Legal scholars have acknowledged the debt of public administration organizations’ design to Max Weber’s ideal type of legal-rational authority. But how exactly has Weber’s ideal type permeated public law? The literature does not seem to have asked this question. This paper identifies one of the ways such permeation has happened. In fact, this article shows the influence of Max Weber’s ideal type on constitutions is revealed by the verbatim use of the lexicon and the characteristics of the Weberian ideal type of legal-rational authority. The language of Max Weber’s ideal type has been transposed into legislation without further elaboration thus lending itself to the critique that the ideal type cannot be taken as a behavioral hypothesis.