The distinctive domain and character of public law have become—and in certain respects always were—unclear and, to a degree, contested. As a result, any definition is likely to be to some extent stipulative. For my purposes, I want to refer to public law in two broad and related senses—as applying to a certain kind of body and its functions, and as requiring a certain kind of justification. The first sense refers to the actions of the state and its administration. Of course, it will be pointed out that these are increasingly performed by private bodies and often involve legal activities that have been associated with private parties and doctrines, such as procurement and contract. Nevertheless, government and the administrative apparatus more generally can still be considered as possessing distinctively broad, authoritative, and coercive powers which in various ways make their subjection to the law both problematic and pressing: Problematic in that they play a central role in the making and enforcement of the law, pressing in that this role renders them more powerful than other bodies. The second sense enters here. For the justification of state power has come to rest on its serving the public ends of the ruled rather than private ends of the rulers, and certain public qualities of law have been thought to oblige those who wield state power to do so in a publically justified and justifiable way. Ruling through laws has been viewed as different from rule by willful, ad hoc commands because laws have certain characteristics that render them capable of coordinating and shaping public behavior in consistent and coherent ways over time, while ruling under the law likewise forces rulers to adopt public processes and offers an additional incentive to devise laws that treat rulers and ruled equitably. Again, these matters are far from straightforward. How far laws need to, or even can, always possess the requisite qualities and the degree to which these do constrain power holders are matters of dispute. Yet, that all law has to have some public qualities—for example, that it be promulgated and capable of being followed in ways that make it publicly recognized as law—and that these features formalize power to a degree, is reasonably undisputed. Increasingly, though, and even more controversially, many jurists have wanted to suggest that legality also involves certain substantive qualities of a public kind—that laws must appeal to public reasons that all subject to them can accept as reflecting, or being compatible with certain basic interests or values that are equally shared by all. Such arguments have come to be identified with rights and in particular constitutional rights, which are deemed to set the terms of how and to what purpose political power may be legally exercised. In this way, the two senses of public law come together. Constitutional rights define and mark the limits of public power in ways that can be publicly justified, and thereby ensure it serves public ends. They thereby serve what Martin Loughlin calls the “basic tasks of public law;” namely, “the constitution, maintenance and regulation of governmental authority.”

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.

The purpose of this paper is not to argue for a particular approach to constitutional interpretation, but to map the domain thereof and clarify the requirements that an adequate theory of the subject must meet. A comprehensive constitutional theory has to address both how and by whom a given constitution should be interpreted. While everyone admits that these two issues are not entirely unrelated, many constitutional theorists presume that a theory of constitutional interpretation can usefully insulate these two questions. The argument is that once we have answered the question of who will interpret the constitution and we have made a decision on institutional design, we can then focus our efforts on the proper method of interpretation. Although I do not deny that the two questions can be analytically separated, my contention is that a theory of constitutional interpretation focusing only on the how question is wholly inadequate.

Taking both ordinary regulations and constitutional principles in account, is state intervention in the market through public policies legitimate? The legitimate use of public policies, as far as state intervention is concerned, will be analyzed taking into consideration legal procedures and the necessary legal interpretation. Methodologically, the theoretical object of this research is to conciliate the idea of law as integrity, developed by Dworkin, with the idea of law as identity, complemented by Taylor's idea of identity and Bankowski's idea of living lawfully. In fact, the methodological approach consists of reconstructing a system of analytical concepts based on a moral reading of legal rules and constitutional principles rooted within contemporary legal theory. The final object is to figure out new means of interpreting legal economic regulations and finding new ground for the legitimate evaluation of public policies.

In this short paper commenting on Chein's contribution to the present and special issue of this Journal, I ask whether economic analysis of law, when understood as supporting, in particular, the state intervention in the market, needs moral foundations. This seems to be one of the claims made by Chein, and my answer is certainly “yes.” Economic analysis of law and state intervention in the market certainly need some moral ground (utilitarian, Kantian, or else). What I resist is Chein's claim that they need the complex theoretical construction of Dworkin's idea of integrity plus Taylor's idea of identity and Bankowski's idea of living lawfully.

In the recent Anglo-American scholarly debate, contrary to that of continental Europe, judicial review of legislation raises strong criticism for various aspects. Among these, I will examine the claim that legislators are better equipped than courts in constitutional reasoning, on the ground that the institutional settings and procedures affecting the former ensures a better protection of rights than those that characterize the judicial function. The following questions will be posed: Do legislators primarily deal with rights as such? Do they reason about rights, and in that case for which purposes? Are these purposes sufficiently similar to those affecting the judicial reasoning about rights? Why in most legal orders courts are bound to reason-giving? While answering these questions, I will outline the different meaning that consequentialist reasoning is likely to acquire, respectively, in representative assemblies and on the bench. I will then classify the kinds of juridical consequences, and of the corresponding premises, that might affect constitutional reasoning according to the different weight of judicial construction. Finally, I will attempt to demonstrate why the indeterminacy of principles on which constitutional reasoning is expected to rely should be viewed as enhancing, rather than as distorting, the insight of courts on the right at stake.

A well-known maxim of all kinds of legal realism is that the identity of judges matters a great deal. The most famous account of this tenet is the apocryphal statement attributed to Jerome Frank declaring that what matters in the law is “what the judge ate for breakfast.” While Frank never put that in print, he did say that the “peculiar traits, disposition, biases and habits of the particular judge will, then, often determine what he decides to be the law;” in short, that “the personality of the judge is the pivotal factor in law administration.” A more epigrammatic and elegant summary of this position was given by none other than Carl Schmitt, who declared that “[w]hat matters for the reality of legal life is who decides.”

What do public debates on the appointment of constitutional judges tell us about the view of the law and judicial adjudication? Fernando Muñoz's article focuses on the debates regarding the appointments of Justice Sotomayor to the U.S. Supreme Court and Minister Bertelsen to the Constitutional Court in Chile. According to the author, these debates reflect the tension between two views of the law and judicial adjudication—autonomy and responsiveness—as to how judges should deal with extra-legal considerations in performing their functions. While the autonomy position tries to “defend the substantive values of the law by policing the distinction between the legal and the extra-legal,” the responsiveness position claims that “the law ought to extract its substance from social expectations, needs, and priorities, serving them as a means to an end.” In the author's view, Sotomayor's supporters and Bertelsen's opponents would uphold responsiveness and defend the need of the judiciary to respond to social expectations and needs, whereas Sotomayor's opponents and Bertelsen's supporters would uphold autonomy. The participants on these debates seek to gain hegemony regarding their views on what the law is and how constitutional adjudication should be conducted.

In this paper we are going to analyze how constitutional courts are able to extract the most meaning from a, necessarily, short text, such as a constitution, with the use of sophisticated tricks, or methods, of interpretation. Partly with the help of these methods, and partly on the basis of text-independent speculations, constitutional courts and legal scholars are able to develop a system of concepts (a Rechtsdogmatik, or its specific constitutional part, the Verfassungsdogmatik) considerably more sophisticated than the one of the actual text of the constitution in order to serve as a helping toolkit for the solution of future cases. After analyzing some preliminary issues in part A, the largest part of this study will deal with the different methods of constitutional interpretation in part B. Then, the nature of this conceptual system will be analyzed in part C, before turning to the question of styles of constitutional reasoning in part D. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.

The central purpose of this paper is to show that there are no major differences in the methods of constitutional interpretation in countries with varying degrees of judicial review. Despite the fact that legal culture and traditions, underlying political theories, and values all affect methods of interpretation, there is no big gap in constitutional interpretation in practice in view of wide interpretive discretion. Obviously all legal systems require compliance with some fundamental interpretive standards irrespective of the legal system, and in a democratic society judicial decisions should be justified at least to avoid arbitrariness. The question is what are the limits beyond which judges cannot go in constitutional democracies? Hence, the style and method of legal argumentation that are used to justify the decision may differ in the countries belonging to different legal systems. Whether there are significant differences between the common law and civil law, constitutional interpretation will be assessed through the comparative analysis of the United States Supreme Court and the German Federal Constitutional Court.

In his paper The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court, Arshakyan carries out an interesting and detailed comparison between American and German constitutional courts by individualizing the properties shared by both courts and identifying the differences.

Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.

The principle of proportionality is on the rise. A growing number of constitutional and international courts refer to some form of proportionality in their jurisprudence. At the same time, the principle is receiving more and more attention in international legal scholarship. Yet proportionality has not remained uncontested. In particular, some scholars have severely criticized the core of the proportionality test, which involves a balancing of competing values. This balancing is accused of being irrational because it requires placing incommensurable values on the same scale. In a famous dictum, Judge Scalia once claimed that balancing competing constitutional values is like determining “whether a particular line is longer than a particular rock is heavy.”