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42 results

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  • 8 - Constitutionalism and Mobility: Expulsion and Escape among Partial Constitutional Orders

  • from Part II - Border Crossings: Comity and Mobility
  • Edited by Jacco Bomhoff, London School of Economics and Political Science, David Dyzenhaus, University of Toronto, Thomas Poole, London School of Economics and Political Science
  • Book:
    The Double-Facing Constitution
    Published online:
    17 January 2020
    Print publication:
    30 January 2020, pp 211-242

  • Summary

    Jacco Bomhoff is principally concerned with the character of constitutionally salient boundaries. In its first part, this chapter explores the contrast between, on the one hand, recognition of the legally mediated character of borders and jurisdictional boundaries in critical scholarship, and, on the other hand, unquestioning determinations of ‘inside’ and ‘outside’ in judicial practice. The second part of this chapter, then, approaches the question of the character and effects of constitutional boundaries by way of a case study on mobility. Mobility, in its many different forms – its restriction and its excesses, for individuals and for corporations – lies at the heart of many pressing contemporary challenges. The legal treatment of mobility, however, is fragmented across many different specialised fields – from immigration law, to tax law, to international arbitration – in which constitutionalist concerns are rarely central. The chapter aims to address this lacuna by sketching the contours of an ‘outward-facing constitutionalism’ which could provide the conceptual and normative means to scrutinise the constitutional implications of the regulation of ‘access’ and ‘exit’ for both individuals and corporate actors.

The Double-Facing Constitution
  • Edited by Jacco Bomhoff, David Dyzenhaus, Thomas Poole
  • Published online:
    17 January 2020
    Print publication:
    30 January 2020
  • This collection explores some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors. Constitutional and legal theory often marginalize 'foreign' elements, such as norms originating in other legal systems, the movement of individuals across borders, or the application of domestic law to foreign affairs. In The Double-Facing Constitution, these instances of boundary crossing lie at the heart of an alternative understanding of constitutions as permeable membranes, through which norms can and sometimes must travel. Constitutional orders are facing both inwards and outwards - and the outside world influences their interiors just as much as their internal orders help shape their surroundings. Different essays discuss the theoretical and historical foundations of this view (grounded in Kelsen, Hobbes, Locke, Rousseau and others), and its contemporary relevance for areas as diverse as migration law, the conflict of laws, and foreign relations law.

  • Lüth's 50th Anniversary: Some Comparative Observations on the German Foundations of Judicial Balancing

  • Jacco Bomhoff
  • Journal:
    German Law Journal / Volume 9 / Issue 2 / 01 February 2008
    Published online by Cambridge University Press:
    06 March 2019, pp. 121-124
    • Article
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  • On January 15th 2008, it was precisely fifty years ago that the First Senate of the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) handed down its seminal decision in the Lüth case. The Lüth decision can be seen as a foundational moment for at least two transformative Post-War developments in constitutional thinking that continue to influence legal systems around the world.

  • Perfectionism in European Law

  • Jacco Bomhoff
  • Journal:
    Cambridge Yearbook of European Legal Studies / Volume 14 / 2012
    Published online by Cambridge University Press:
    27 October 2017, pp. 75-100

  • European law manifests powerful perfection-seeking internal dynamics, nudging—even compelling—legal actors to strive to make the European legal order ‘the best it can be’. This chapter uses a comparative approach to show that this perfectionism is contingent (that is, not necessarily shared by all legal orders), and that it is a highly distinctive characteristic of European legalism specifically. Uncovering the hidden dynamics of this juridical perfectionism is an important step towards rethinking European law’s agency and its correlate: our own ability to shape European integration through law.

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