Comparative reasoning and the making of a common constitutional law: EU-related decisions of national constitutional courts in a transnational perspective

Abstract

This contribution argues that recent EU-related decisions of national constitutional courts demonstrate a new quality of comparative legal reasoning. While classic EU-related case law at best reflects comparative law dimensions by sporadic references to foreign case law, some constitutional courts in Europe have now taken a path towards a more elaborate use of comparative reasoning, including in-depth and sometimes even critical evaluations of foreign jurisprudence in the ratio decidendi. Beyond the traditional motives for courts to rely on comparative law, one particular reason for this intensification seems to be taking an active role in an EU-wide process of shaping common constitutional law. Seen in a transnational perspective, comparative reasoning by judges can be more than a mere reference to foreign law as such; in fact, the judicial evaluation of foreign EU-related decisions can simultaneously be an evaluation of propositions on common constitutional standards. Comparative reasoning by courts then becomes an active contribution to a transnational dialogue of judges on the making of a common constitutional law in Europe. © The Author 2013. Oxford University Press and New York University School of Law. All rights reserved.