Edited by Antonina Bakardjieva Engelbrekt and Joakim Nergelius
Chapter 9: The Viability of Constitutional/Non-Constitutional Comparison
9. The viability of constitutional/ non-constitutional comparison Johan Lindholm I. INTRODUCTION I would like to take this opportunity to bring attention to a comparative methodological question that I encountered while writing State Procedure and Union Rights (Lindholm, 2007). Is it possible to compare how two legal systems resolve a problem when one system approaches it as constitutional and the other system approaches it as something else? Otherwise phrased, is constitutional/non-constitutional comparison possible? My object of examination was the legal mechanisms governing what procedural rules national courts shall apply to European Union rights. I took a comparative approach to this topic, comparing European Union law on this subject with how the comparable problem is resolved in the United States and soon discovered that the two systems approach the problem from distinctly different perspectives. In European Union law, focus has been on the individual’s ability to effectively enforce his or her Union law rights. There is a tendency in EU law to approach the selection of procedural rules as a rather technical issue. In the United States, by comparison, the issue is first and foremost approached as a constitutional one focusing on the effects that the choice of procedural rules has on the vertical division of power between federal and state governments (Lindholm, 2007: 239–249). Having discovered that the two systems approach the issue from different perspectives I considered the methodological implications of my findings. Is it proper or even possible to compare the European approach to that of the United...
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