Table Of ContentCOMPARATIVE LEGAL REASONING AND EUROPEAN LAW
Law and Philosophy Library
VOLUME 50
Managing Editors
FRANCISCO J. LAPORTA, Department of Law,
Autonomous University of Madrid, Spain
ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden
FREDERICK SCHAUER, John F. Kennedy School of Government,
Harvard University, Cambridge, Mass., U.S.A.
Former Managing Editors
AULIS AARNIO, MICHAEL D. BAYLESt, CONRAD D. JOHNSONt,
ALANMABE
Editorial Advisory Board
AULIS AARNIO, Research Institute for Social Sciences,
University of Tampere, Finland
ZENON BANKOWSKY, Centre for Criminology and the Social and Philosophical
Study of Law, University of Edinburgh
PAOLO COMANDUCCI, University of Genua, Italy
ERNESTO GARZ6N VALDES, Institutfiir Politikwissenschaft,
Johannes Gutenberg Universitiit Mainz
JOHN KLEINIG, Department of Law, Police Science and Criminal
Justice Administration, John Jay College of Criminal Justice,
City University of New York
NEIL MacCORMICK, European Parliament, Brussels, Belgium
WOJCIECH SADURSKI, European University Institute,
Department of Law, Florence, Italy
ROBERT S. SUMMERS, School of Law, Cornell University
CARL WELLMAN, Department of Philosophy, Washington University
The titles published in this series are listed at the end of this volume.
COMPARATIVE
LEGAL REASONING
AND EUROPEAN LAW
by
MARKKU KIlKERI
University of Turku, Finland
SPRINGER -SCIENCE+BUSINESS MEDIA, B. V.
A c.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN 978-1-4020-0284-7 ISBN 978-94-010-0977-5 (eBook)
DOI 10.1007/978-94-010-0977-5
Transferred to Digital Print 2001
Printed on acid-free paper
AII Rights Reserved
© 2001 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 2001
No part of the material protected by this copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
TABLE OF CONTENTS
Acknowledgements xi
CHAPTER 1: INTRODUCTION
1. GENERAL REMARKS 1
2.COMPARATIVE LAW IN THE CONTEXT OF EUROPEAN LAW 5
3.THERELEVANCEOFTHESTUDY 7
CHAPTER 2: SOME HISTORICAL AND
THEORETICAL OBSERVATIONS
1.PRELIMINARY REMARKS: THE RHETORICAL
NATURE OF THE COMPARATIVE LEGAL ARGUMENT 11
2. SOME HISTORY 13
2.1. Early comparisons 13
2.2. Modem comparative law 19
2.3. Conclusions 25
3. TO THE IDEA OF COMPARATIVE LEGAL REASONING 30
3.1. Introduction 30
3.2. Traditional approach 31
3.3. Comparative law argument and comparative legal culture 33
3.4. Comparative law as comparative legal reasoning 35
3.5. Conclusions: the basic structure of practical comparative legal reasoning 50
4. GENERAL CONCLUSIONS 52
CHAPTER 3: COMPARATIVE LAW IN EUROPEAN
LEGAL ADJUDICATION
1. INTRODUCTION 57
1.1. Preliminary remarks 57
1.2. Some "legal" bases for the use of comparative law in adjudicative reasoning 57
1.3. Some observations concerning the material of the study 60
1.4. The use of comparative law in some national legal orders 63
1.4.1. General remarks 63
1.4.2. Comparative reasoning in relation to international legal obligations 69
European law and national legal orders 69
Other types of international obligations 76
1.4.3. Some examples 77
1.4.4. Some general remarks on internal comparison, mixed courts, and
private international law comparison 92
2. COMPARATIVE LAW IN THE EUROPEAN LEVEL CASE LAW
2.1. European Community law 99
2.1.1. General remarks 99
2.1.2. On interpretation in Community law 101
vi T ABLE OF CONTENTS
2.l.3. The legal basis for the use of comparative law 103
2.l.4. General remarks on the use of comparative law in the
European Community legal order 104
2.l.5. Some general remarks on comparative influences
in Community law 105
2.l.6. Comparative reasoning in the realm of international law
in the European Court of Justice 107
2.l. 7. The use of state legal systems in the absence of
international obligations 113
2.l.8. Conclusions 147
On the basis ofthe case law 147
On the basis of the interviews 149
2.2. The European System of Human Rights 153
2.2.l. General remarks 153
2.2.2. Some examples of comparative reasoning 154
Trial within a reasonable time or release pending trial 154
Corporal punishment in private schools 154
Non-enforcement of access and custody rights 155
Non-recognition of paternity 156
Transsexuality 158
Pre-trial detention 159
2.2.3. Comparative reasoning related to Article 10(1 and 2)
(''freedom ofe xpression" and "necessity in a democratic
society") in of the European System of Human Rights 160
(Cases Handyside, Engel, X v Germany, Arrowsmith, Glimmerveen,
Liberal Party, Barthold, Glasenapp, Markt Intern, Groppera,
Autronic,Miiller, Caste Is v. Spain, Observer, Colman, Chorherr,
Informationsverein Lentia, Casado Coca, Jersild, Oberschlick)
2.2.4. Conclusions on the European System of Human rights 184
On the basis of the case law 184
On the basis of the interviews 187
2.3. Some general conclusions 190
2.3.l. General remarks 190
2.3.2. Some analysis 193
3. "HARD CASES" AND THE COMPARATIVE
LIMITS OF EUROPEAN LAW 194
3.l. Introduction 194
3.2. Value based comparative reasoning 195
TABLE OF CONTENTS Vll
3.2.l. Hard case I (The Otto Preminger Institute
in the European system of human rights) 195
General remarks 195
Context of justification 195
Justification 198
Some further analysis 199
"Morality" and procedural polycentrism 201
3.2.2. Hard case II (Bachmann in the European Court of Justice) 204
Introduction 204
Context of justification 204
Justification 205
Some analysis 206
Conclusions 207
3.3. Traditional comparative reasoning 208
3.3.1 Hard case III (Hoechst in the European Court of Justice) 208
General remarks 208
Context of justification 209
The inquiry into the Member States' systems 211
The inquiry into the European System of Human rights 215
Conclusions 217
Justification 218
Some analysis: a principle of individual protection vs.
protection of business premises? 219
3.3.2. Hard case IV (Albany in the European Court of Justice) 222
General remarks 222
The facts of the case 223
The context of justification (the Advocate General's opinion) 224
The Court's reasoning 227
Some other studies 230
Some conclusions 234
Collective agreements and competition law; basic rights,
market rights, and the hierarchy of these rights based
on the idea of functional interpretation 236
General conclusions 241
3.4. Functional comparative reasoning: Hard case V (Kalanke
in the European Court of Justice) 242
3.4.l. General remarks 242
3.4.2. Comparative law as acceptable and non-acceptable legal source 243
3.4.3. "Substantive equality" 245
viii TABLE OF CONTENTS
3.4.4. Some analysis 249
3.4.5. Comparative generalities, the paradox, and the use of third law 251
3.4.6. Substantive equality as a cultural argument, the limits oflaw,
and functional law 252
3.4.7. A systematic interpretation? 254
3.4.8. Epilogue 1: Structural inequality 255
3.4.9. Epilogue II: a vertical comparative analysis 257
3.4.10. Final conclusions 262
3.5. Conclusions on the hard cases 265
CHAPTER 4: CONCLUSIONS
1. COMPARATIVE EUROPEAN LAW AND
EUROPEAN COMPARATIVE LAW 269
1.1. Preliminary remarks 269
1.2. The intellectual dimension: forms of interaction of arguments
and legal systems 270
1.2.1. General remarks 270
1.2.2. The analytical quality of comparative arguments,
the "stages of coherence", and the legal integrity of systems 272
1.3. Motives for comparative reasoning in European law 273
1.3.1. General remarks 273
1.3.2. The forms of traditional "self-construction", control of
compliance, and integrative interpretation 274
1.3.3. Maintenance of "reasonable autonomy" and the role of
comparative considerations in substituting
the travaux preparatoires 275
1.3.4. Implementation of changes in a persuasive way;
the strength of the normative solution 277
1.3.5. The stability function: the strength ofthe argument,
the judicial self-restraint, and the relative dynamics and stability 278
1.3.6. Comparative reasoning directing the future interpretations
in national and European legal systems 280
1.4. The institutional dimension 281
1.4.1. Institutional reasoning in European law 281
1.4.2. The structure of the European level institutional comparative law 282
1.5. Conclusions 286
1.5.1. The function of comparative law in the evolution of European law 286
1.5.2. Problems of evolution? 287
TABLE OF CONTENTS ix
2. CONCLUSIONS ON EUROPEAN LAW
2.1. General remarks: toward a "reflexive" theory of European law 289
2.2. Is there justification for the (institutional) non-discursive reflexivity? 294
2.3. Integrative reflexivity and European comparative rules 295
2.4. European comparative dogmatics and vertical comparisons 298
2.5. Conclusions 299
EPILOGUE
1. CONTEMPORARY COMPARATIVE LAW 303
2. WHAT KIND OF INSTITUTIONAL mSTIFICATION IS
COMPARATIVE LEGAL mSTIFICATION? 307
LITERATURE 317
INTERVIEWS 329
INDEX 331
ACKNOWLEDGEMENTS
The following argument was first defended as a doctoral dissertation in March 1999 in
the Department of Law at the European University Institute Florence. The criticism, the
comments and the support received during and after the defence have shaped this text to
its contemporary form. The text is considerably shortened, but as well some new
chapters have been included. Some work related to the correction of the various fallacies
unfortunately embedded in the thesis and to sharpening of the argumentation.
I would like to thank the readers of the thesis, Aulis Aarnio, Massimo La Torre, John
Bell, Marie-Jeanne Campana, and Gunther Teubner, for their help in this project.
Especially the support and the encouragement of Aulis Aarnio and Alexander Peczenik
have been essential for this publication. Aulis Aarnio has shown his deep broad
mindedness during this process and I hopefully have learned something from it.
I also want to thank Susan Lamb again for her short introduction to public secrets of
the English language. The comments of the (unfortunately) anonymous Kluwer referee
have also been instructive and he (she?) has given me inspiration to review and make
additions to the text. Furthermore, many additions are due to the discussions I have had
with Kaj-Henrik Impola, Olavi Sulkunen, Jari Hellsten and Heikki Larmola in the
Finnish Parliament library during the endless "breaks". Three of us have already
defended, so these breaks have not been obstacles for the work but obviously some kind
of intellectual "gymnastics" necessary for scientific thought.
The Finnish Parliament provided me work place in the researchers' hall and help in
research. Especially I want to thank Eila Rantala. The University ofTurku provided me
valuable experience by having me as a substituting professor of International and
European Law in the Faculty of Law during 1999-2000, and various discussions there
were very inspiring. I hope I would have the possibility to return some day to this
University rich in tradition.
I would like to acknowledge the scholarship provided me for the Doctoral research by
the Finnish Academy. The Finnish Cultural Foundation (Heikki Haapaniemi fund) gave
me financial support for finishing the thesis. However, the work after the defence has
been possible only because of the scholarship I received from the Emil Aaltonen
Foundation. I sincerely thank all persons involved.
My friend Antti Uihteinen has patiently and with high professional skill provided me
assistance with all the matters relating to computers, programming. The publishing
editor Sabine Wesseldijk and her assistants Anny Burer and Ireke Ravesloot have
patiently helped me and directed this publishing process in a friendly ambience.
