Comparative Constitutional Reasoning

Negligence-Occupier's liability-Duty of care-Eye injury suffered by player of indoor cricket-Failure to provide protective helmet-Failure to warn of specific risk of eye injury-Whether Indoor cricket 4. Indoor cricket was introduced to Western Australia in 1979. There are about 250 indoor cricket centres in Australia. It is played by about 120,000 people in Australia, and by about 12,500 in Western Australia. 5. Although, as its name suggests, the sport is derived from, and has similarities to, cricket, there are also differences, and it would be wrong to assume that it is played in a manner that resembles what takes place in a suburban or country park on a Saturday or Sunday afternoon in summer. 6. Mr Lewis, the vice-president of the Australian Indoor Cricket Federation (AICF), and former coach of the Australian team which competes for the World Cup, gave evidence. The game is played as a contest between two teams, ordinarily composed of eight persons each. It is played in what is called a court; the average size of a court being 28 to 30 metres long and 10.5 to 12 metres wide. At any given time there are 10 players on the court; two from the batting team and eight (including a bowler) from the fielding team. The court is separated into two sections. In one half, there are the wicketkeeper and three other fielders. In the other half there are the bowler and three other fielders. This is a body contact sport, involving what Mr Lewis called "clashing". There is a good deal of diving by both fielders and batters, who throw themselves onto, and slide along, a synthetic carpet, as they seek to field the ball, or make runs, as the case

Decision 1001/2013 (II. 27.) of the plenary session of the Constitutional Court of Hungary on the Constitutional Court's Rules of Procedure. 2 Article 24 (8) of the Fundamental Law. 3 See Decision 14/2019 (V. 28.) of the Hungarian National Assembly on setting up the ad hoc committee for the nomination of members of the Constitutional Court. Even before the entry into force of the Fundamental Law, the composition of the body had changed significantly, with the number of members being increased from 11 to 15 by the legislature. As a result of the two-thirds Adél Köblös (2021) Interpretation of Fundamental Rights in Hungary. In: Zoltán J. Tóth (ed.) Constitutional Reasoning and Constitutional Interpretation, pp. 181-243. Budapest-Miskolc, Ferenc Mádl Institute of Comparative Law-Central European Academic Publishing.

Studies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as express...

This article sets out to inquire into the French Constitutional Council's approach when dealing with immigration matters. It seeks to demonstrate how the Council's case law has endorsed, for the most part, the legislator's immigration policies, recognizing extensive police powers and striking down only the most excessive provisions of immigration laws. It is argued here that the Council's seemingly neutral methods of reasoning are in fact politically oriented instruments providing stable support for restrictive immigration policy preferences. An overall analysis of the Council's case law sheds critical light on the main methods of reasoning advanced by the Council to endorse immigration policies, even in their most recent restrictive trends. The Council has clearly opted in favor of stricter immigration control, deliberately rejecting a rights-based approach.

At the end of 2020, a research group was established within the Mádl Ferenc Institute of Comparative Law in Budapest. The group was formed with the purpose of studying the practice of constitutional courts in six Central and Eastern European countries (including the decisions related to international law) and the relevant decisions of the referred international fora. As part of it, the Research Group aimed to present 1) the features of the common interpretation practice of fundamental rights in the V4 and the North Western Balkan countries and of the main differences; 2) the similar European legal practice regarding the concerned countries (i.e. the relevant legal practice of the ECtHR) and the European Court of Justice; and 3) the similarities and differences between the countries studied in the two previous points and the regional/transnational fora. For this purpose, highly respected experts of the legal system, one from each of the countries (namely, the Czech Republic, Hungary, Poland, Serbia, Slovakia, and Slovenia), were invited for the analysis thereof. The present paper introduces the methodology used in order to establish well-founded conclusions on the practice of constitutional interpretation and constitutional reasoning and the inferences themselves made on the grounds of the domestic findings via a comparative law analysis.

The chapter contains a brief introduction that delineates the constitutional court of the given country, including information on its position within the system of state institutions (role within the system of the separation of power, constitutional ‘mission’, and function), its structure, the basic rules of its operation, and its powers. This introductory is followed by an analysis of the 30 constitutional court decisions. The aim is to determine the characteristics of the constitutional reasoning, and the practice of interpreting fundamental rights by the Czech constitutional court. Within the frames of the substantive decision analysis, the author delineates, as the main results of the research, the following: a) the methods of interpretation the constitutional court used in its decisions; b) the style of reasoning and decision-making of the constitutional court; c) the characteristics, which can be of interest to the scientific community, of the decision-making of the constitutional court or the relation with the decisions of the international court (CJEU and ECHR). Subsequently, the chapter contains an analysis of the 30 international court decisions. Both a statistical-quantitative analysis (delineating, in particular, the percentage of occurrences of the methods and arguments used by the constitutional court, ECJ, and ECtHR) and a qualitative-analytical analysis were deployed. The chapter is closed with a brief summary, including the most important conclusions, the comparison of the judicial practice, reasoning style, and applied key terms of the national constitutional court and the ECJ/ECtHR, as well as the explanations for the possible or probable reasons for the similarities and differences.

Are there common traces of constitutional reasoning in Latin America? Some insights on the use of international law and constitutional self-awareness based on the preliminary empirical results of a regional project called Constitutional Reasoning in Latin America (corelatam.com).  Published on the Blog of the International Journal of Constitutional Law. July 30, 2020.

The Invisible Factors Behind Using Comparative Law in Constitutional Adjudication. Romanian Journal of Comparative Law, 2019/1, 201-226.

Abstract
Courts dealing with constitutional issues are often using comparative law when fulfilling their functions: they refer to foreign law or at least consult comparative material. The scope and form of the use of comparative law is different at the different courts and there are severe criticisms about the lack of methodology. These phenomena be explained by the judges’ and courts’ different aims when
using comparative law, and by the different factors that influence them when deciding in which cases, in which forms, and which jurisdictions’ law they consult or refer to. However, most of these aims and factors are invisible and therefore unveiling them demands complex research methods. The understanding of these aims and factors can help scholars to prepare methodological standpoints for judges to support them in avoiding misuse of comparative law and ‘cherrypicking’,
and through this strengthening the legitimacy of the courts.

Keywords: comparative law; judicial dialogue; constitutional adjudication;
citation; horizontal communication; methodology