Comparative Public Law Research Articles

Ferri, Delia, Palermo, Francesco y Martinico, Giuseppe, Federalism and the rights of persons with disabilities: the implementation of the CRPD in federal systems and its implications, Hart Studies in Comparative Public Law, Vol. 29, Hart Publishing, Unite

Este libro, de brillante factura, es altamente recomendable para cualquier persona, en la academia y en la praxis, con interés y vocación por los estudios sobre el federalismo, el constitucionalismo, y el marco normativo relativo a las personas con discapacidad, particularmente a la luz del Derecho internacional de los derechos humanos. Recibido: 20.01.2024Aceptado: 10.05.2024

Water fluoridation between public health and public law: an assessment of regulations across countries and their preventive medicine implications.

Among health professionals and health policymakers concern is growing as to the difficulty of balancing the prevention of dental caries through cost-effective interventions and the need to limit unnecessary exposure of the population, and especially children, to environmental chemicals. In this respect, the use of water fluoridation to prevent tooth decay epitomizes the dilemma by raising questions relevant to both public health and public law, ranging from the balance of public health and medical self-determination, the division of powers between local or national authorities over water fluoridation, and the need to avoid the adverse effects of socioeconomic inequalities as well as both under- and over-exposure. We carried out a narrative review by searching the relevant literature about the laws and rules related to drinking water fluoridation at the community level in the US, UK, and Europe, in order to discuss how the issue is handled from both a public health and public law perspective. Sources of data for this review were the biomedical and legal literature retrieved by searching online databases, and websites of public health and legal institutions. We found that water fluoridation is still largely adopted throughout the US, while in the UK and particularly in the European Union only a minor part of the population is subject to it. In addition, the recommended and maximum allowed amounts of fluoride in drinking water are being adapted to the public health recommendations and the new regulations, within an evolving evaluation of the epidemiologic evidence and the risk assessment currently in progress by two major regulatory agencies, the US National Toxicology Program - NTP and the European Food Safety Authority - EFSA. Under a comparative public law perspective, the three investigated legislations are facing a reassessment of their policies and regulations, to allow for effective and safe public health measures in the field of water fluoridation and more generally for a preferred use of topical fluoride for caries prevention. A consistent trend across these legislations is the choice to centralize at the national level regulatory and management issues related to water fluoridation, and to carefully balance benefits for dental caries prevention in children and the potential risks of systemic overexposure associated with excess fluoride intake, by promptly responding to the evolving indications by the scientific community and the public health professionals.

Developments in Comparative Public Law in South Africa

In South Africa, the study and practice of law involve comparing different legal systems due to the complex historical blend of Roman-Dutch, English, indigenous, and religious laws. Constitutional supremacy since 1994 has amplified the importance of comparative legal method. The 1996 Constitution itself drew from various legal systems, endorsing the use of foreign law in interpreting rights. Comparative legal method is vital across all legal domains, and has greatly grown in relevance in constitutional and administrative law following constitutionalisation. This contribution explores the use of comparative legal method in South African constitutional and administrative law. It uses Herwig Hofmann’s three categories of comparative frameworks, namely “law as category”, “law as source” and “law as variable”, to consider the continuity and discontinuity between historical reliance on comparative method in South Africa and comparative legislative and judicial practices under the Constitution in the areas of constitutional and administrative law.

Comparative Public Law in the United Kingdom

In the UK, comparative law is an influence but not a determining one in judicial decisions, unless it comes from a familiar source, mainly from the common law. Scholarly comparative law, which is substantial and thriving, contributes in a more indirect fashion to create an environment in which some decisions become thinkable to judges and legislators. In the current atmosphere of a retreat from European-wide legal rules, comparing different national legal systems will be more influential than the appeal to pan-European standards in both judicial decisions and in inspiring legislation.

Comparative Public Law Scholarship in the United States

The article addresses the paradoxical nature of comparative public law scholarship in the United States. The globalization of life makes foreign law as inescapable in the United States as in any other modern country. Foreign law models played a substantial role at the founding of the country and for some time thereafter when there was not much American law. But today comparative study of foreign models of public law plays hardly any role at all in the preparation of legislation or constitutional amendments in the United States, and a high-profile debate at the Supreme Court revealed significant antipathy on the Court to the use of comparative law in interpreting domestic law. In those senses, comparative public law scholarship appears to have little impact on U.S. law. There are, moreover, a number of unique features of American law that make it difficult to import legal models from other countries, most notably the especially strong skepticism toward reliance on the state and state regulation that pervades American society and legal thinking about law. One might conclude that a cosmopolitan world view is not very strong in America, but the article argues for a more nuanced view. The forces of globalism expose lawyers and courts in the United States constantly to foreign and international law, immigration continues to enrich the body of scholars working and teaching in the United States, and there is a rich body of foreign and comparative law scholarship in English that is readily available to students and scholars in the United States and that is produced at least in substantial part by scholars working in the United States. These features attest to a curiosity and openness in the United States to learning about foreign law. The article argues that America is home to strong tendencies in both directions, cosmopolitanism and its opposite, nationalism or chauvinism, and comparative public law scholarship in the United States should be seen as navigating between these opposing impulses.

Comparative Public Law and Water Crisis

Abstract Environmental degradation and anthropogenic climate change severely affect natural resources, thus fostering the need for effective tools to cope with multiple concerns. Within this scenario, the article aims to address public law policies and legislation in reference to water management, with a focus on three specific issues: 1) environmental cost, 2) participation and water management, 3) alternative dispute resolutions (adr s) and water disputes. The first part is based on the analysis of environmental cost related to the degradation and exhaustion of water ecosystems as a result of an activity (e.g., as a result of withdrawal and/or pollution), as well as related to the supply scarcity. The second part deals with participation, co-participation and multi-level governance systems in the context of deliberative decision-making processes. The third part highlights the key role of participation and proximity in resolving disputes within local communities through the analysis of specific cases (i.e., the Tribunal de las Aguas, the Sudovi za vodu, and the Médiateur de l’eau).

History as a Problem? On the Historical Self-Perception of the Max Planck Institute for Comparative Public Law and Inter- national Law

History as a Problem? On the Historical Self-Perception of the Max Planck Institute for Comparative Public Law and Inter- national Law

Introducción: Los entes autónomos en el derecho constitucional latinoamericano

Abstract This introduction provides an overview of the concept and role of independent authorities in comparative public law, with a particular emphasis on Latin America. First, we outline an idea of these institutions and examine how they have assumed critical responsibilities traditionally allocated to one of the three branches of government. We also explore their role in protecting constitutional democracy and discuss some problems associated with their democratic legitimacy. Second, we outline these entities’ situation in Latin America, stressing how little academic attention they have received in contrast with their growing importance. Finally, we provide a critical review of each of the contributions to the symposium.

СУЧАСНА ЗАРУБІЖНА КОНСТИТУЦІОНАЛІСТИКА: ІНСТИТУТ ПОРІВНЯЛЬНОГО ПУБЛІЧНОГО ПРАВА ТА МІЖНАРОДНОГО ПРАВА ІМЕНІ МАКСА ПЛАНКА (MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIK LAW AND INTERNATIONAL LAW)

The European vector of modern Ukrainian politics involves a broad and thorough acquaintance with the latest achievements of European and world legal thought. Domestic jurisprudence, which has been developing for many years in line with the orthodox Marxist methodology, overcomes not only ideological isolation, but also produces a new research culture based on the study and understanding of modern trends in foreign jurisprudence. It is necessary to emphasize that this process is only unfolding and is not always implemented in specific studies, in particular, dissertation studies, where the use of works by foreign authors on the studied issues is often absent, and, therefore, the latest methodological approaches and theoretical and doctrinal developments of the world's leading experts are not taken into account. As before, little information is published in domestic legal periodicals about foreign research centers and schools in various fields of law, activities of foreign legal scholars, academic publishing houses and authoritative periodicals. All this fully applies to our science of constitutional law, which encourages us to more actively cover the study of constitutional law in foreign countries, publishing activity and activities of scientific centers related to the problems of constitutional law. One of the internationally recognized centers of modern constitutional studies is the Max Planck Institute of Comparative Public Law and International Law (Heidelberg, Germany). His research in many respects sets the tone and determines the direction of modern constitutional and legal investigations. The article provides a detailed description of the work of the Institute, which is built on the principles of theoretical and methodological pluralism, individual projects are specifically directed to the use of different methodological approaches. It is noted that the research is conducted in two forms: 1) doctrinal and theoretical analysis - problem-oriented fundamental research that seeks to reveal the structures, development and regularities of constitutional and international law; 2) systematic analysis and comparison of legal norms in order to solve current legal problems or carry out reforms. The relatively low level of abstraction of such studies is explained by the need to provide specific recommendations to officials or practicing lawyers. The institute strives for broad relations with the public. It is noted that the Institute occupies a leading position in world constitutionalism in terms of the volume of research conducted, the wide coverage of topics and the depth of theoretical analysis. His achievements must be taken into account by the domestic science of constitutional law.

About the Authors

About the Authors

Hugo Grotius’s De iure belli ac pacis: a Report on the Worldwide Census of the First Edition (1625)

Abstract This article provides new information on the publication history of the first edition of the text that, according to many scholars, laid the ground for the growth of international law: Hugo Grotius’s De iure belli ac pacis. Drawing on the preliminary findings of the Grotius Census Project at the Max Planck Institute for Comparative Public Law and International Law, funded by the German Research Foundation (Deutsche Forschungsgemeinschaft), the following pages shed light on the first three states of the typescript, the sources that Grotius had access to in France while drafting the book, and the early circulation of the 1625 edition, published by Nicolas Buon in Paris. The goal of this publication is to disseminate updated information on the printing history of this key text in the history of legal and political thought, and to invite readers to come forward with more information about the location of the remaining copies of the text, in order to advance our understanding of the rise of international law around the world.

Tra Personal Law e tutela dei diritti umani: le “Minority Women” nel contesto afghano e oltre

The paper aims at investigating the current status of Afghan women’s human rights from the perspective of constitutional and comparative public law in light of the debate on minority women’s condition in multicultural and multiethnic legal systems.
 Moving beyond the analysis of the Afghan legal system and hinging on selected statistics on Afghanistan’s ethnically diverse composition, the first part of the paper examines Afghan’s women condition following the coming into force of the 2004 Constitution by interlacing the constitutional provisions with the existing rules of Personal and Customary Law.
 The second part of the paper goes on by comparing the Afghan legal system with selected European and extra-European Countries featured by systems of law, that similarly to Afghanistan rely on a mixture of State Laws, Personal, and Customary Laws to highlight the extent to which these systems affect women’s human rights and, especially, those of minority women

Why Due Regard Is More Appropriate than Proportionality Testing in International Investment Law

Abstract Global regulatory standards of due diligence, regulatory coherence, and due regard are emerging in public international law. Investment law has been concerned to settle upon the most appropriate regulatory coherence tests for application in the arbitration of regulatory disputes. Candidates have included proportionality, rationality, and reasonableness tests. This article argues instead for reliance on the due regard standard in conjunction with reasonableness or rationality testing. This will more appropriately reflect the nature of investment treaties as inter-State bargains. Further, responding to arguments for the adoption of proportionality on the basis of comparative public law, the article demonstrates that proportionality is not established as a general head of review in common law jurisdictions including England, Australia, Canada, New Zealand and South Africa. At the same time, the application of the due regard standard can have much in common with procedural proportionality testing as seen among these domestic legal systems and elsewhere.

Comparative Public Law for European Society

Comparative Public Law for European Society

Виклики та можливості розвитку прав людини і бізнес-сфери в Бразилії та Латинській Америці: теорія спільного конституційного проєкту для Латинської Америки (А Ius Constitutionale Commune)

In her article, Brazilian professor Daniela Ann Pamplona describes the role of the JointConstitutional Project for Latin America (ICCAL) in strengthening the investment potential of LatinAmerican countries, strengthening the capacity of Latin American countries and businesses to respectand protect human rights. ICCAL is the latest theory developed by Armin von Bogdandi, MarielaMorales Antoniazzi and Flavia Piovesan at the Max Planck Institute for Comparative Public Law andInternational Law, which seeks to promote the transformation of social and political realities in LatinAmerica to create the necessary democratic conditions. and human rights. The current situation in theregion is characterized by a number of multifaceted challenges: high poverty rates, deep social gapsthat limit access to opportunities, especially for the most vulnerable; Ethnic groups and indigenouspeoples are not protected and respected in the implementation of macro-projects, such as mining,the lack of norms and practices on the obligation of companies to consult widely with indigenous andtribal peoples and to ensure their participation in any decision to intervene affects their territories.ICCAL’s approach to business and human rights is based on various Inter-American Court rulingsthat recognize the role of companies in adversely affecting human rights, but at the same time clearlyarticulate the human rights obligations of governments and businesses in terms of the HumanRights Guidelines. As the author explains, the potential role of ICCAL is that it can be a practicalguide for interpreting different national norms and helping to strengthen weaker states. It can alsostrengthen dialogue between countries in the region and with the Inter-American Human RightsSystem. Cohesion around the meaning and content of human rights will allow states and companiesto more effectively coordinate and coordinate actions to promote human rights.

Experimental Regulations and Regulatory ­Sandboxes – Law Without Order?

This article argues that the poor design and implementation of experimental regulations and regulatory sandboxes can have both methodological and legal implications. First, the internal validity of experimental legal regimes is limited because it is unclear whether the verified positive or negative results are the direct result of the experimental intervention or other circumstances. The limited external validity of experimental legal regimes impedes the generalization of the experiment and thus the ability to draw broader conclusions for the regulatory process. Second, experimental legal regimes that are not scientifically sound make a limited contribution to the advancement of evidence-based lawmaking and the rationalization of regulation. Third, methodological deficiencies may result in the violation of legal principles (e.g., legality, legal certainty, equal treatment, proportionality) which require that experimental regulations follow objective, transparent, and predictable standards. This article contributes to existing comparative public law and law and methods literature with an interdisciplinary framework which can help improve the design of experimental regulations and regulatory sandboxes. This article starts with an analysis of the central features, functions, and legal framework of these experimental legal regimes. It does so by focusing on legal scholarship, policy reports, and case law on experimental regulations and regulatory sandboxes from France, United Kingdom, and The Netherlands. While this article is not strictly comparative in its methodology, the three selected jurisdictions illustrate well the different facets of experimental legal regimes. This article draws on social science literature on the methods of field experiments to offer novel methodological insights for a more transparent and objective design of experimental regulations and regulatory sandboxes.

The mysterious meeting between Carl Schmitt and Josef Redlich

Abstract In 1934, Carl Schmitt, then the crown jurist of the Third Reich, wrote in an essay titled “National Socialist Legal Thought” about “[a] conversation with a world-famous, world travelled, experienced scholar of more than seventy years of age from the United States [which] belongs to the major experiences and encounters which led me as a jurist to National Socialism.” Schmitt never disclosed the identity of the scholar whom he met. Based on Schmitt’s diaries, I reveal that the scholar was Josef Redlich. Born to a Jewish family in 1869, Redlich was the Fairchild Professor of Comparative Public Law at Harvard Law School at the time he met Schmitt in 1931. According to Schmitt’s 1934 essay, the conversation focused on the indeterminacy of legal norms and on a nihilist understanding of the era. Even after discovering the identity of the scholar to whom Schmitt refers in his essay and analyzing the ideas discussed in their meeting, the story of the encounter between Schmitt and Redlich remains mysterious. For some reason, the ideas of a scholar of Jewish descent, who believed in an Austrian multi-national, federal state, inspired and played a profound role in the formulation of a blatantly antisemitic essay promoting National Socialist legal thought by the crown jurist of the Nazi regime. Schmitt repeated the tale of his meeting with an American scholar—without disclosing his identity—in a lecture he gave in Italian, two years after publishing his essay. Based on an analysis of this obscure lecture, his 1934 essay, and various other materials written both by Schmitt and Redlich, I offer three possible explanations for why Schmitt viewed his encounter with Redlich as so influential on his road to National Socialism.

Why Religious Freedom Matters for Democracy. Comparative Reflections from Britain and France for a Democratic “Vivre Ensemble”, par Myriam Hunter-Henin, Hart Studies in Comparative Public Law, 2020, 224 pages

Why Religious Freedom Matters for Democracy. Comparative Reflections from Britain and France for a Democratic “Vivre Ensemble”, par Myriam Hunter-Henin, Hart Studies in Comparative Public Law, 2020, 224 pages

Global constitutionalism: Asia-Pacific perspectives

AbstractThis special issue of Global Constitutionalism discusses how global constitutionalism influences Asia-Pacific jurisdictions and how they respond. This introductory article presents the theme and structure of this issue, explains the Asia-Pacific’s unique contribution to global constitutionalism and offers a synthetic argument. It conceptualizes global constitutionalism as the global diffusion of common constitutional ideas, institutions and doctrines rooted in comparative constitutional law and public international law. On that base, it argues that constitutional design, adjudication and discourse in many Asia-Pacific jurisdictions are influenced by global constitutionalism. The influence results in not only convergence but also resistance to global constitutionalism in the regions. The regional experience presents critical challenges for global constitutionalism, and hence its effective operation significantly depends on its situation within the region’s axiological, institutional and social contexts.

Kulick, Andreas/Goldhammer, Michael (Hrsg.): Der Terrorist als Feind? – Personalisierung im Polizei- und Völkerrecht

The ZaöRV has been published since 1929 under the auspices of the Max Planck Institute for Comparative Public Law and International Law, Heidelberg. Its English name is Heidelberg Journal of International Law (HJIL). The journal is a forum for discussing fundamental and current issues of public international law, European Union law, comparative public law, and occasionally topics in the domestic public law of EU member states and beyond. Its ambition is to publish contributions by authors from all over the world, with a wide gamut of scholarly methods and outlooks. The journal is bilingual (English and German). All German pieces are made visible to that audience by their English abstracts and translated titles.