Local Meanings of Proportionality

Book published by Cambridge University Press (2021)

Proportionality increasingly dominates legal imagination. Initially conceived of as a principle that regulates police action, today it is progressively established as an advanced tool of liberal ... [more ▼]

Proportionality increasingly dominates legal imagination. Initially conceived of as a principle that regulates police action, today it is progressively established as an advanced tool of liberal constitutional science. Its spread, accompanied by a global paradigm of constitutional rights, appears to be an irresistible natural development. This thesis was inspired by the intuition that even though courts and lawyers around the world reason more and more in proportionality terms, proportionality can mean very different things in different contexts, even within the same legal system. While the relevant literature has paid little attention to differences in the use of proportionality, identifying the local meanings of proportionality is crucial to making sense of its spread, to assessing its success, and to appraising the possibility of convergence between legal systems. Through an in-depth study and comparison of the use of proportionality by legal actors in France, England and Greece, this work shows that the local meanings of proportionality are not simply deviant applications of a global model. Instead, they reflect the legal cultures in which they evolve, local paths of cultural change and local patterns of Europeanisation. [less ▲]

La réinvention du droit de l’Union européenne par les acteurs juridiques nationaux : le cas de l’intention du législateur en common law

in Revue des Affaires Européennes (2020), (4), 865-880

In this article, it is proposed to take the differences in the practice of EU law seriously. The aim is not to construct a ‘correct’ content of European legal rules, concepts and methods, which would be ... [more ▼]

In this article, it is proposed to take the differences in the practice of EU law seriously. The aim is not to construct a ‘correct’ content of European legal rules, concepts and methods, which would be different from their content in the legal practices studied, neither to discover the economic and political interests ‘hidden’ behind the use of EU legal arguments. The local practices of EU law are studied in their own discursive and cultural context. Their interpretation gives us important information on the legal cultures in which these practices evolve, but also on EU law and EU integration. The proposed approach is exemplified through the narration of the story of purposive interpretation in the common law. This technique, typical of Continental systems and of the case law of the ECJ, was long rejected in the common law as a prohibited trespassing of the limits of judicial competence. Its reception under the influence of European law has been the vector of a significant transformation of the common law into a rational legal order based on substantive values. While this proves that convergence between European legal systems is possible, it also shows that this convergence does not necessary imply the advancement of socio-political integration in Europe. Once received in the common law, the technique of purposive interpretation is reinvented to serve common lawyers’ goals, which do not always coincide with those of European institutions and of the ECJ. [less ▲]

Analyse de proportionnalité et raisonnement par cas dans l’application de la CEDH

in Cahiers de Méthodologie Juridique (2018), 32(5), 1856-1883

It is often said that proportionality is a method of ad hoc judicial reasoning. Close attention to practice however, exposes this vision as too simplistic. The content of proportionality is very different ... [more ▼]

It is often said that proportionality is a method of ad hoc judicial reasoning. Close attention to practice however, exposes this vision as too simplistic. The content of proportionality is very different across jurisdictions, even in the application of the same legal text, and the role of concrete cases in judicial reasoning varies considerably. The purpose of this article is to illustrate this through a study of the reasoning of the French Council of State and of the European Court of Human Rights in the field of the Convention. The study of French and European proportionality case law reveals that different versions of proportionality involve different kinds of case-based reasoning, in which the case has a more or less normative function. The article suggests that this is connected to the local meanings of proportionality and of human rights in French law and in the Convention. [less ▲]

Economic Emergency and the Loss of Faith in the Greek Constitution

in Cambridge Journal of International and Comparative Law (2016), 2015(2), 289-318

The legal story of the Eurozone crisis is by now well known. Most commentators have focused on the impact of the crisis on the organisation of the European Union. However, the dominant Eurocentric ... [more ▼]

The legal story of the Eurozone crisis is by now well known. Most commentators have focused on the impact of the crisis on the organisation of the European Union. However, the dominant Eurocentric discourse has neglected the important changes brought about by the crisis in the constitutions of ‘weak’ Member States—those who have received financial assistance. Domestic scholars are typically unable to offer a coherent account, let alone justification, of these transformations from a constitutional law point of view. Outside the domestic sphere, constitutional change within ‘crisis-hit’ countries has not attracted enough attention; it is considered not to be the problem, but rather the solution or an inevitable side-effect of the European developments. Still, it is precisely these ‘weak’ states that form exemplary cases for the study of how economic emergency and European integration operate in the domestic sphere of liberal constitutional democracies. The purpose of this paper is to shed some light on this ‘dark side’ of the Eurocrisis, through the study of a particular, albeit exemplary, national case: Greece. How was the Greek Constitution deconstructed by legal means? How do domestic actors justify the significant constitutional-political changes brought about by the Eurocrisis? How can we observe the loss of faith in the Greek Constitution? [less ▲]

Constitutional-political change in Greece during the crisis

in Federalismi (2016), 26