Immanence and irreconcilability: on the character of public law as political jurisprudence

In Foundations of Public Law, Martin Loughlin constructs an intricate conceptual triangle made up out of religion, law, and politics, in order to offer an account of the character of public law as a secular, political, jurisprudence. In this essay, I argue that this account takes neither religion nor law seriously - and this in revealingly similar ways. Loughlin’s book presents public law as an irreducibly paradoxical discourse, devoted to sustaining ‘the irreconcilable’ within society. Relative to this discourse, religion - understood by Loughlin as absolutist dogma - appears in the book only as a threat, whereas law - seen as a mere tool - becomes a necessary and innocent means for its support. I offer a critique of both these lines of argument, as not sufficiently attentive to religion and law as fields with their own histories, internal dynamics, and forms of efficacy. Religion, when seen in terms of practice, discipline, and ritual, in fact has much in common with - and considerable resources to offer to - Loughlin’s own vision of public law. And attention to the legalism so deeply embedded in juristic discourse reveals law as posing precisely the absolutist threat that Loughlin fears (but only associates with religion and ‘the social’). Bringing these two lines of argument together, I argue that Loughlin’s own ambition for public law as a prudential discourse of contained irreconcilability, is better served, not by striving for radical - and impossible - immanence, but by acknowledging that discourse’s dual character as a phenomenon both immanent and transcendent. I also suggest that ritual practice may have an important role to play in maintaining this dual, and paradoxical, character

Proportionality in comparative law

orthcoming as an entry on ‘Proportionality’ in the Elgar Encyclopedia of Comparative Law (2nd edition), Jan Smits, Catherine Valcke, Jaakko Husa & Madalena Narciso, eds. Investigations of proportionality’s role in contemporary public law are complicated by the way the topic straddles so many binaries familiar within the discipline of comparative law. These include those of substance and form, discourse and practice, ‘function’ and ‘culture’, and – perhaps most importantly – similarity and difference. Comparative legal scholarship, this entry argues, will have to grapple with the contradictory tasks of simultaneously investigating and questioning proportionality’s (real or purported) hegemony. To this end, the paper presents brief overviews of work concerned with the (1) identification, (2) explanation, (3) interpretation, and (4) critique, of proportionality’s global diffusion and ‘success’

Back to the Bremen (1972): forum selection and worldmaking

The US Supreme Court’s 1972 decision in The Bremen v. Zapata Off-Shore Co. is widely seen as a landmark in the law of jurisdictional party autonomy. Where earlier American courts had rejected forum-selection clauses as ‘ousters’ of jurisdiction and therefore as against public policy, the Supreme Court now firmly came out in their favour, and Chief Justice Burger’s resounding rejections of ‘parochialism’ in his opinion for the court have often been cited since. This brief Comment revisits the decision, arguing that The Bremen should be understood not as a mere statement of principle or change in doctrine, but as a particularly striking instance of worldmaking. The Comment discusses in particular: (a) the constructive roles of ‘scale’ and scalar modulation as techniques of worldmaking, and (b) some paradoxes in the character of the world of private party autonomy that the decision helped imagine and make real

Making legal knowledge work: practising proportionality in the German repetitorium

Forthcoming in Social & Legal Studies (2022). This article presents a cultural and critical study of ‘proportionality review’ as a legal knowledge format and practice. The setting for this study is German public law, and in particular a domain of German legal education that is rarely analyzed even in Germany: the classes and materials offered by Repetitoren. These are commercial providers that aim to prepare students for the all-important ‘First Juridical Examination’. In this setting, proportionality is presented as a principle that matters, a doctrine that works, and a technique that jurists – lawyers, judges, but especially also law students – can learn to perform. Sustaining the sense that proportionality ‘works’, however, itself requires work, in particular in the form of largely invisible background constraints on what can count as suitable problems and appropriate solutions. In these processes of making proportionality into a ‘doable’ technical instrument, the German legal-constitutional order as a whole is presented as a feasible, achievable project. The article looks at how proportionality’s success is produced and experienced, and what its status as a foundational, near-ideal legal instrument means for the character of the German constitutional and legal imagination

Making legal knowledge work practicing proportionality in the German repetitorium

This article presents a cultural and critical study of ‘proportionality review’ as a legal knowledge format and practice. The setting for this study is German public law, and in particular a domain of German legal education that is rarely analyzed even in Germany: the classes and materials offered by Repetitoren. These are commercial providers that aim to prepare students for the all-important ‘First Juridical Examination’. In this setting, proportionality is presented as a principle that matters, a doctrine that works, and a technique that jurists – lawyers, judges, but especially also law students – can learn to perform. Sustaining the sense that proportionality ‘works’, however, itself requires work, in particular in the form of largely invisible background constraints on what can count as suitable problems and appropriate solutions. In these processes of making proportionality into a ‘doable’ technical instrument, the German legal-constitutional order as a whole is presented as a feasible, achievable project. The article looks at how proportionality’s success is produced and experienced, and at what its status as a foundational, near-ideal legal instrument means for the character of the German constitutional and legal imagination

Genealogies of balancing as discourse

The language of balancing and proportionality figures increasingly, often in judicial and academic constitutional legal reasoning in Western democracies. The spread of this particular form of discourse raises important methodological and substantive issues for scholars of comparative law. While the dominant narrative in the relevant lines of scholarship has long been one of similarity and convergence, this article argues that not enough attention has been paid to the possibility of difference—the idea that references to balancing might mean very different things in different settings. In Parts I and II, the article suggests that a methodological shift—from a focus on balancing as doctrine to a focus on balancing as legal argument—will be necessary to bring out these different meanings. Based on a case study of early and mid-twentieth century practices in Germany and the United States, it is argued that one crucial difference in the local meanings of balancing in these settings relates to the extent to which choices of legal form are locally expected to have inherent substantive implications (Parts III and IV)

Getting legal reason to speak for itself: the legal form of the Gutachten and its affordances

Roughly translatable as ‘expert memorandum’, the term Gutachten and its cognates refer to, at once, a textual format, a problem-solving technique, and a highly distinctive writing style at the heart of German law and legal education. This article is interested in what this format, technique, and style do, and in how they do it. To this end, it invokes the concept of affordances, to study the way the Gutachten’s formal characteristics are implicated in the production of legitimacy effects. The most important of these combine into a dual disappearance of both author and artefact. This leaves the abstract form of the Gutachten as a transparent and fractal rendering of legal reason itself. The article, finally, builds on this case study of a legal form central to German law and legal thought, to offer reflections on comparative method for the study of legal reasoning formats, techniques, and styles. The suggestion will be that grasping legitimacy effects and uncovering how they may help sustain local legal actors’ commitments to their reasoning tools, will require a cultural study of legal form, containing at least some moment during which critique is suspended

Comparing legal argument

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

Balancing constitutional rights: the origins and meanings of postwar legal discourse

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