Online research in philosophy

American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed as based on American isolationalism and unilateralism. In this article we suggest an original, and often overlooked, explanation to the difference between balancing and proportionality - the historical origins of the two concepts. We examine the ways in which proportionality developed in Germany and balancing in the United States and show that the origins of both concepts were very different. For instance, proportionality was originally developed in administrative law, and was only tangentially (if at all) related to private law, whereas balancing arose in private law and was only later extended to public law; proportionality was created as part of an attempt to protect individual rights, whereas balancing was created for the exact opposite purpose - to check overzealous protection of rights by the Supreme Court during the Lochner era. We suggest that these differences may go a long way in explaining current disparities in attitudes and current barriers to dialogue and convergence between these two concepts.

While international judicial forums such as the International Court of Justice ("ICJ"), the International Criminal Court ("ICC"), and regional criminal courts have been important developments, based on actual use and successful results the dispute settlement system of the World Trade Organization ("WTO") has had much greater impact. Most settlement of disputes between persons of different countries takes place, however, not at the ICJ, or the ICC, or the WTO, but in private arbitration and in litigation before national courts. Peace (and justice) are promoted and kept on a regular basis through the process of reaching decisions in specific cases involving specific parties. In all of this, lawyers play the central role-as advocates, as judges, as arbitrators. Lawyers are day-to-day peacemakers. This article considers one part of the evolution of Europe: the developing competence of the European Union over matters of private law, private international law, and judicial cooperation - in other words, the role of the European Union (through the institutions of the European Community) in private litigation.

The increasing use of fundamental rights arguments to protect weaker parties in contractual disputes in many European legal systems leads us to ask to what extent this will occur in the future rather than whether fundamental rights will have an impact on the relationships between private parties under contract law. One of the fundamental issues to be resolved in this respect is which body of law substantially determines the outcome of a contractual dispute between private parties - fundamental rights or contract law. The answer to this question is of crucial importance for the future of (European) contract law. It will determine whether contract law will be turned into a wholly malleable vehicle for promoting fundamental rights or whether contract law will enter into a dialogue with fundamental rights and remain decisive for the regulation of private law relationships generally, and in particular, for the protection of weaker parties. In German law there is a line of judicial authority subordinating contract law to the fundamental rights contained in the Federal Constitution. It is argued here that serious objections exist against such an approach.

The increasing use of fundamental rights arguments to protect weaker parties in contractual disputes in many European legal systems leads us to ask to what extent this will occur in the future rather than whether fundamental rights will have an impact on the relationships between private parties under contract law. One of the fundamental issues to be resolved in this respect is which body of law substantially determines the outcome of a contractual dispute between private parties - fundamental rights or contract law. The answer to this question is of crucial importance for the future of (European) contract law. It will determine whether contract law will be turned into a wholly malleable vehicle for promoting fundamental rights or whether contract law will enter into a dialogue with fundamental rights and remain decisive for the regulation of private law relationships generally, and in particular, for the protection of weaker parties. In German law there is a line of judicial authority subordinating contract law to the fundamental rights contained in the Federal Constitution. It is argued here that serious objections exist against such an approach.

On October 19, 2004, the European Court of Justice held its first en banc hearing since the 2004 enlargement to twenty-five Member States. The case was Opinion 1/03, involving a request by the Council of the European Union on whether the Community has exclusive or shared competence to conclude the Lugano Convention. While the case on its face deals only with a single convention, it has far broader implications and is likely to influence the development of private international law and private law on a Community level for years to come. This brief article traces the origins of the issues faced in the Lugano case and provides comment on some of its implications for the future.

In what, if any sense are our torts and our breaches of contract 'wrongs'? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement and this book provides both an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law.

The adversary system and the practice of law -- The rule of law -- The moral force of law -- Statutes -- Precedents -- Constitutional interpretation -- Natural law and legal positivism: classical perspectives -- Formalism and legal realism -- Morality and the law -- International law -- Law and economics -- The justification of punishment -- The rights of defendants -- Sentencing -- Criminal responsibility -- Compensating for private harms: the law of torts -- Private ownership: the law of property -- Private agreements: the law of contract -- Church and state -- Personal liberty and privacy -- Freedom of speech -- Equality.

This essay explores the historical and conceptual connections between private law and nineteenth century classical legal science from the perspective of German, American, and Jewish law. In each context, legal science flourished when scholars examined the confined doctrines traditional to private law, but fell apart when applied to public, administrative and regulatory law. Moving to the contemporary context, while traditional private law scholarship retains a prominent position in German law and academia, American law has increasingly shifted its focus from the language of substantive private law to a legal regime centered on public and procedural law. The essay concludes by raising skepticism over recent calls to reinvigorate the Euro-American dialogue by focusing on traditional private law and scholarship.

This article explores the evolution of the European Convention [of Human Rights]applicability in private law through the developmentof the conceptof positive obligationson state parties arising under the Convention. The article exploresthe caselaw of the European Court of Human Rights primarily through the caseof Pla and Puncernau v Andorra, looking at the law of interpretation and the regulation of private transactions through the principles of "horizontal effect" and the Convention as a "living instrument", concluding with observations concerning the legitimacy of the European Court's position on this issue.

Originally, private law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defenses against the vigilant eye of the state. This traditional view, however, has been put under pressure as a result of the growing effect of fundamental rights in private law, which makes it possible to speak about the tendency towards the constitutionalization of private law. Although until recently this tendency has primarily manifested itself in the national law of many EU Member States as a result of the readiness of the domestic courts to grant effect to fundamental rights embodied in national constitutions and international human rights instruments in purely private law disputes, an interesting perspective on the issue is also provided by EU law. The aim of this article is to trace in EU law the signs of the developments which have been occurring in national legal systems with regard to the effect of fundamental rights in private law, and, in the light of this, to outline possible directions in the evolution of the relationship between private law, on the one hand, and EC fundamental freedoms and EU fundamental rights, on the other, in the context of EU law.