Comparative Constitutional Reasoning: Recasting its Justification and Operation
Comparative Constitutional Reasoning: Recasting its Justification and Operation
This chapter analyzes the implications of judicial dialogue for the mode of judicial reasoning in interpreting fundamental rights. In particular, it explores the comparative method and judicial self-restraint as mechanisms contributing to ECJ's authority-building. These mechanisms have been highly contested in the literature. First, the chapter articulates a normative justification of the comparative method for giving meaning to EU fundamental rights. In addition, it expands on how the ECJ should operationalize this method, eschewing lowest and highest standard approaches. The comparative method should be aimed at better understanding the values informing the meanings attributed to fundamental rights across the states. This inter-state comparison would help to strengthen common understandings, while fostering an in-depth appraisal of pervasive particularities. Thereafter, ECJ's deference to state courts allowing for diversity in rights interpretation are explored.
Keywords: comparative constitutional reasoning, rights interpretation, common constitutional traditions, standards of protection, synthetic outcomes, deference, judicial self-restraint, diversity
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