This book is written by Zou Yanmeng and reviewed by Song Yang
The good book presented and recommended today is the collection of essays edited by Giuseppe Franco Ferrari, Judicial Universalism: Foreign Law under the Current Constitutional System. The book was published in 2019 by the famous Dutch publishing company Brill.
【Editor's Profile】
Giuseppe Franco Ferrari is Professor of Constitutional Law at Bocconi University in Milan and Vice-President of the International Academy of Comparative Law. He has authored and edited several volumes and some 350 articles on public law, constitutional law, comparative law, environmental law and country law.
【Monograph Content】
The book details the application of foreign law by the Supreme Courts and Constitutional Courts of Europe, the Americas and East Asia. The manner in which foreign laws are used by courts and the ways in which courts recognize foreign laws for the purpose of making decisions was highlighted. The editors have attempted to highlight the reasons and types of foreign jurisprudence that are increasingly frequently circulating in most High Court case law. At the same time, it also shows the importance of this practice in the so-called new constitutionalism.
This book creatively uses the research method of national laws to explore how foreign laws are applied in the judicial process through the perspective of constitutional law. The Civil Code just promulgated by China does not stipulate the applicable status of international treaties and international customs, let alone systematically stipulate the legal status of foreign laws, and the Law on the Application of Foreign-related Civil Legal Relations only sets the application of specific rules of foreign civil laws through the connection points of civil relations. This has caused China's laws to lack systematic positioning and application ideas for foreign laws, which has to be said to be a pity, and this collection of papers can provide systematic guidance for the future application of foreign laws in China to a large extent, and perhaps systematically stipulate the application status and application method of foreign laws through the Constitution. In short, this collection of papers has the function and significance of a guiding reference book for China's private international law and constitutional law.
Part I: Common Law States
1. Glorious isolation or opening up to the outside world? The Supreme Court's application of foreign law
By Justin O. Frosini. Associate Professor of Comparative Public Law at Bocconi University in Milan and Adjunct Professor of Constitutional Law at the School of Advanced International Studies (SAIS) at Johns Hopkins University. He is also director of the Centre for Constitutional Studies and Democratic Development in Bologna, Italy.
2. The application of foreign law in the adjudication of the Irish Constitution
By Oran Doyle and Tom Hickey.
Oran Doyle is an Associate Professor at Trinity College Dublin and received his PhD from it. He is the author of The Irish Constitution: A Contextual Analysis (Hart, 2008).
Tom Hickey, LL.M. (National University of Ireland), LL.M. (University of Cambridge), PhD (National University of Ireland, 2013), Assistant Professor, School of Law and Government, Dublin City University. He has published in journals including the International Journal of Constitutional and Legal Studies.
3. Comparison of laws in the case law of the Supreme Court of the United States of America
By Giuseppe Franco Ferrari. Professor of Constitutional Law at bocconi University in Milan and Vice-President of the International Academy of Comparative Law. He has authored and edited several volumes and some 350 articles on public law, constitutional law, comparative law, environmental law and urban law.
4. Comparative law in the case of the Supreme Court of Canada
Authors: Nino Olivetti Rason and Sara Pennicino.
Nino Olivetti Rason, who received a bachelor's degree in arts from Harvard University in 1955, was a full professor of comparative public law at the University of Padua, Italy. His research focuses on common law and environmental law.
Sara Pennicino, ph.D. from the University of Siena, Italy, in 2008, is an associate professor of comparative public law at the University of Padua, Italy, and an adjunct professor of international human rights at Johns Hopkins University Europe. Her research focuses on elections.
5. The development of Indian constitutional law, which draws on the judicial thinking of common law countries
By Anton Cooray. Bachelor of Laws, PhD (University of London), PhD (Sri Lanka), Professor of Urban Law, University of London; Hong Kong Constitution (3rd Edition 2019), Hong Kong Environment Law (2nd Edition, 2018); Editor, Journal of International and Comparative Law.
6. Comparative law practice of the Supreme Courts of Australia and New Zealand
By Maurilio Gobbo. He is a full professor of constitutional comparative law at the University of Padua. His current scientific research focuses on the process of constitutional review and the unique process of legitimacy control. In addition, his research focuses on re-elaborating and adapting to the unique categories of public law and the concept of Roman-German law.
7. Comparative Legal Toolkit of the Constitutional Court of South Africa
By Angelo Rinella and Valentina Cardinale.
Angelo Rinella, graduated from the Faculty of Law of the University of Rome and is Professor of Comparative Constitutional Law at the University of Rome. His recent research has involved neurocognitive enhancement, food sovereignty, genetically modified organisms from a comparative law perspective, and Western Sharia law.
Valentina Cardinale, who works in international research at the Italian Ministry of Education, University and Research. She is a lawyer and received her PhD in Comparative Law from the University of Siena in 2009. She has several publications in the discipline of comparative law, including teaching freedom, Chinese property law, and scandinavian constitutional justice.
Part II: Continental Europe
1. Comparative Law and the French Constitutional Council
Author: Paolo Passaglia is a professor of comparative law at the University of Pisa. Doctor of Constitutional Justice (University of Pisa, 2001) and Interim Scientific Coordinator of the Comparative Law Department of the Research Branch of the Constitutional Court of Italy. Major books: Articles on the formal invalidity of legislative acts (2002), on the French constitutional tradition (2008) and on the abolition of the death penalty (2012).
2. Comparative Reasoning in Constitutional Proceedings: Case Law on the Functions, Methods and Choices of the German Federal Constitutional Court
Author: Sonja Haberl is a postdoctoral fellow in comparative law at Ferrara University and the author of the book National Private Law Association Against Discrimination by Citizens (2011). Recent publications include Hidden Legislators. Outsourcing of German legal legislation and expertise (excerpt from: Legal Policy, 2018) as well as judicial independence and disciplinary review. Fringe Reflections and recent decisions of the German Court of Cassation (from: Legal Cultural History Materials, 2019)
3. Comparative law in the case law of the Austrian Constitutional Court
Author: Christoph Grabenwarter, researcher or professor in Vienna, Strasbourg, Heidelberg, Bonn and Graz from 1988 to 2006; professor at the Vienna University of Economics and Business; Vice-President of the Austrian Constitutional Court. Publications include: The 2014 European Convention on Human Rights; European Constitutional Jurisdiction (Ius Publicum Europaeum, Volume VI, 2016).
4. Conspicuous absentees in the Dutch legal order: constitutional review and constitutional court
Author: Wim Voermans, graduated from Tilburg School of Law in 1987 and received his Ph.D. in 1995. Since 2002, he has been an official professor of constitutional law and administrative law at Leiden University. Studies focus on comparative constitutional and theoretical, (European) legislative studies and democracy.
5. The Belgian Constitutional Court and the application of comparative arguments. From dialogue with the "sister courts" to dialogue with the European Court of Justice
Author: Paolo Carrozza, full professor of constitutional law at the Sant'Anna Superior School in Pisa. Major publications (in English): The Paradox of Constitutional Reform (2017); Kelson and Contemporary Constitutionalism (2017); The Italian Senator (2012); Postmodern Openness of Constitutionalism (2006).
6. The Spanish Constitutional Court and Foreign and Comparative Law: Theory and Practice of Expedient Marriage
Ángel Aday Jiménez Alemán is a lecturer in constitutional law at the University of Vigo. In 2013, he received his J.D. degree from the same university.
7. Comparison of applications in the case law of the Swiss Federal Court
The author: Sergio Gerotto, professor of comparative law at the University of Padua. He holds a Doctorate in Constitutional Law from the University of Fribourg (Switzerland). His writings cover all areas of comparative public law, particularly in federalism, judicial review, and direct democracy.
8. Is there a middle ground between constitutional patriotism and constitutional cosmopolitanism? Application of the Portuguese Constitutional Court and foreign (case) law
Author: Catarina Santos Botelho, currently an assistant professor at the Faculty of Law of Porto, Catholic University of Portugal (UCP). MSc (2009) and PhD (2015) in Constitutional Law. He has led the following courses: Constitutional Law, Fundamental Rights, Constitutional Justice, Multi-level Protection of Social Rights and Interdisciplinary Postgraduate Courses on Human Rights.
9. Italian Constitutional Court
Vincenzo Zeno-Zencovich is a professor of comparative law at the University of Rome-Tre and president of the Italian Association of Comparative Law. His most recent books include Introduction to Comparative Legal Systems.
Part III: Northern Europe
1. Nordic courts use foreign jurisprudence in their constitutional interpretations
Author: Francesco Duranti, Associate Professor, University of Comparative Public Law for Foreigners in Perugia (Italy) (University of Perugia - February 2001), Lawyer of the Perugia Bar Association (Italy).
2. Foreign materials in the judgment of the Constitutional Court of the Republic of Latvia
The author: Anita Rodiņa, Doctor of Laws (thesis was defended at the University of Latvia in 2006) is an associate professor at the Faculty of Law of the University of Latvia. She is the author of several articles published in Latvia and abroad. Her professional interests are related to constitutional law, fundamental rights protection, and constitutional review.
3. The use of foreign law by the Supreme Court of Estonia
Author: Madis Ernits, a judge of the Administrative Tribunal of the Court of Appeal of Tartu and a lecturer in constitutional law at the Faculty of Law of the University of Tartu. He is the author of two books and many other publications, primarily the Estonian Constitution Law.
Part IV Eastern Europe
1. The Russian Constitutional Court and the Judicial Application of Comparative Law: A Problematic Relationship
Mauro Mazza is an associate professor of comparative public law at the University of Bergamo (Italy). He recently published an article on local comparative government in giuseppe Franco Ferrari's magazine, The Dutch Constitution Beyond 200, The Hague, 2018.
2. Comparative analysis of the case law of the Constitutional Court of Poland
The author: Miroslaw Granat, is a professor of constitutional law. Former judge of the Constitutional Court of Poland (2007-2016). Project consultant to the Venice Commission of the Council of Europe advising the Constitutional Court of Ukraine on the project.
(3) Use of foreign legal materials by the Constitutional Court of the Czech Republic
By Jana Ondřejková, Kristina Blažková and Jan Chmel
Jana Ondřejková is a senior lecturer in the Department of Political Science and Sociology at Charles University School of Law. Received his PhD in Legal Theory in 2011 (Prague) and currently focuses on the political context of judicial power.
Kristina Blažková, PhD student at Charles University and clerk of the Constitutional Court of the Czech Republic. In her writings, she focuses primarily on the legal arguments of judges and the role of the judiciary in the legal system. She recently co-authored the book Foreign Influences and Comparisons in the Constitution, an article on court openness and the communication of judicial decisions, and a case record of the European Court of Justice's judgment on Al Chodor.
Jan Chmel, a PhD student at Charles University School of Law, graduated in 2015. He focuses on judicial studies, and recently co-authored an article with Kristina Blažková in the Lawyers Quarterly titled "Communicating Judicial Decisions: Out of the Black Box."
(4) The use of foreign laws in the practice of the Hungarian Constitutional Court – in particular during the period 2012-2016
By Csaba Erdős and Fanni Tanàcs-Mandàk
Csaba Erdős, Doctor of Laws, is a senior lecturer at Szechenyi István University (Hungary) and the National Public Service University (Hungary). His research interests include parliamentary law, direct democracy, constitutional court. He has published a monograph and about 60 publications.
Fanni Tanàcs-Mandàk, Ph.D., is a Senior Lecturer at the National Public Service University (Hungary) and an Associate Researcher at the Faculty of Foreign Affairs and Trade. Her research interests include parliamentary law, forms of government, Italian political system. She has published two monographs and about 50 publications.
5. Constitutional rulings and comparative law of the Republic of Croatia
The author: Carna Pistan is a postdoctoral researcher at the University of Udine and a researcher at the Center for Constitutional Studies and Democratic Development in Bologna. She is the author of the monograph Between Democracy and Authoritarianism: Constitutional Judicial Systems in Eastern European and Post-Soviet States.
6. The use of foreign and comparative law by the Constitutional Court of Romania and the Court of Cassation
Author: Camelia Toader, President of the CJUE Chamber of Commerce. Former judge of the High Court of Cassation and Justice of Romania (1999-2007). Honorary member of the International Comparative Law Society. He received his Ph.D. from the University of Bucharest in 1997. Author of various publications in multiple languages
7. The use of comparative and international law by the Constitutional Court of Bosnia and Herzegovina
Author: Laura Montanari, full professor of comparative public law at the University of Udine, is the academic coordinator of the Jean Monnet Module module "Enlargement of the European Union and constitutional transition in the Western Balkans". She received her PhD in Constitutional Law from the University of Milan.
8. State Courts and Comparative Law – States of the Former Yugoslavia (Slovenia, Croatia, Serbia, Bosnia and Herzegovina, Macedonia and Montenegro)
Author: Gian Antonio Benacchio, Professor of European Private Law at the Faculty of Law of the University of Trento. Director of the Antitrust Committee and a member of the International Comparative Law Society.
Part V: Asia
1. The Claims of the Constitution of Southeast Asia and the Supreme Court of Foreign Law on the Origin of Foreign Law
Author: Serena Baldin is an associate professor of comparative public law at the University of Trieste in Italy. She is the author of two books and several articles on constitutional justice, minority protection, cultural heritage and environmental constitutionalism.
2. The Supreme Court of Japan's use of foreign and comparative law
Author: Akiko Ejima, professor of law at Meiji University (Tokyo) Faculty of Law. She holds a Ph.D. from Meiji University. She has worked as a visiting scholar at King's College London, Harvard Law School, Law School and Hughes Hall, Cambridge and Wolfson College in Oxford. Write and teach in the field of constitutional law, comparative constitutional law, and international human rights law. Publications include: Comparative Perspectives on the Enforcement and Effectiveness of Anti-Discrimination Laws (2018) and Multi-Layered Protection of Global Constitutionalism and Human Rights – An Exploration (Constitutional Court of Korea, 2016).
Part VI Latin America
Foreign law and case law of the Latin American Constitutional Court and the Supreme Court
Francesca Polacchini is a PhD candidate in constitutional law at the University of Bologna. More recently, she has published monographs "Constitutional Obligations and the Principle of Solidarity" and "Multi-layered Freedom of Artistic Expression".
Part VII Israel
1. The use of the Supreme Court of Israel and comparative law
Author: Leonardo Pierdominici, a postdoctoral fellow at the Faculty of Law of the University of Bologna, Doctor of Laws from the European Institute of Universities (2016). His writings include European and comparative public law works in prestigious magazines, as well as israel, and many editorial books have been published in Italian and English.