Keywords
linguistic approach
comparative constitutional law
How to Cite
Abstract
The paper focuses on the concept of reasonableness in several countries, in particular, comparing common and civil law systems. More specifically, it refers to the use of this word in the discourse of the judiciary and especially in the context of constitutional law. In the latter context reasonableness plays a crucial role in conveying values and thus construing “different” constitutionalisms; in fact it enhances the dynamics of the constitutional framework, while leaving the Constitution unaltered. Up to now, constitutional scholarship has devoted attention to the issue of reasonableness as a tool of adjudication (i.e. by including it in the wider framework of scrutiny techniques, such as strict scrutiny versus proportionality). On the contrary, the underlying hypothesis of this paper is that a solid linguistic approach will enhance the understanding of the role reasonableness plays as the quest for minima moralia in constitutional law.References
Ajani, Gianmaria. 2003. Navigatori e giuristi. A proposito del trapianto di nozioni vaghe. In Io comparo, tu compari, egli compara: cosa, come, perchè?, ed. Valentina Bertorello, 3-19. Milano: Giuffré.
Bradley, Anthony. 2007. The Sovereignty of Parliament - Form or Substance? In The Changing Constitution, ed. Jeffrey Jowell and Dawn Oliver, 26–61. Oxford: Oxford University Press.
Choudhry, Sujit, The Migration in Comparative Constitutional Law. 2006. In The Migration of Constitutional Ideas, ed. Sujit Choudhry, 1–36. Cambridge: Cambridge University Press.
Cohn, Ernest J., 1968. Manual of German Law. Vol. I. London: The British Institute of International and Comparative Law.
Danneman, Gerhard. 1993. An Introduction to German Civil and Commercial Law, London: The British Institute of International and Comparative Law.
Frosini, Justin O. and Lucio Pegoraro. 2008. Constitutional Courts in Latin America: a testing ground for new parameters of classification? Journal of Comparative Law 3: 39–63.
Frosini, Justin O., Spasič, Ivana. 2006. Ombudsman u Srbiji – Neophodnost ili iluzija? In Pravda na tlu Europe. Zakonski principi u proširenoj Europi, ed. Justin O. Frosini, Michele A. Lupoi, Michele Marchesiello, 335–344. Sarajevo: Magistrat
Sarajevo.
Frosini, Justin Orlando. Constitutional Justice. In Introduction to Italian Public Law, ed. Giuseppe F. Ferrari, 183-210. Milano: Giuffrè.
Frosini, Justin Orlando. 2008. Forms of state and forms of government. In Introduction to Italian Public Law, ed. Giuseppe F. Ferrari, 31-56. Milano: Giuffrè.
Galgano, Francesco, 2002. Il Negozio Giuridico, Milano: Giuffré.
Gambaro, Antonio. 2004. A proposito del plurilinguismo legislativo europeo. Riv. trim. di dir. e proc. civile, 2004: 287 ff.
Garcia Belaunde, Domingo, Carlos Hakinsson Nieto, José F. Palomino Manchego, 2002. The Influence of Europe and the United States in Latin American constitutionalism. Constitutional safeguards and presidentialism. Bologna: Bonomo.
Gerotto, Sergio, 2004, Giurisprudenza costituzionale in Svizzera nel biennio 2002-2003, in Giurisprudenza costituzionale, 5: 3651– 3680.
Grande, Elisabetta. 2006. Comparative Law in Italy. In The Oxford Handbook of Comparative Law, ed. Mathias Reimann and Reinhard Zimmermann, 107–130. Oxford: Oxford University Press.
Grosswald Curran, Vivian. 2006. Comparative Law and Language. In The Oxford Handbook of Comparative Law, ed. Mathias Reimann and Reinhard Zimmermann, 675–708. Oxford: Oxford University Press.
Harding, Andrew and Peter Leyland, 2007. Comparative Law in a Constitutional Context. In Comparative Law a Handbook, ed. David Nelken and Esin Örücü, 313–338. Oxford: Hart.
Leyland, Peter and Terry Woods, 2002. Administrative Law, Oxford: Oxford University Press.
Örücü, Esin. 2007. Developing Comparative Law. In Comparative Law a Handbook, ed. David Nelken and Esin Örücü, 43–66. Oxford: Hart.
Pozzo, Barbara. 2005. Ordinary Language and legal language. Milano: Giuffrè.
R. Pound, Roscoe, 1923. The Theory of Judicial Decision I. The Materials of Judicial Decision, Harvard Law Review 36: 641–662.
Sacco, Rodolfo. 1986. Les problèmes de traduction juridique. In Rapport Nationaux Italiens au XII Congrès International de Droit Comparé, Sidney.
Wade, Henry W.R., and Christopher F. Forsyth. 2004. Administrative Law, 9° ed., Oxford: Oxford University Press.
List of cases:
UK Courts
Rooke's Case (1598) Co Rep 99b
Keighley's Case (1609) 10 Co. Rep. 139a.
Estwick v. City of London (1647) Style 42.
Leader v. Moxon (1773) 2 W. Bl. 924.
Associated Provincial Picture Houses Ltd v. Wednesbury
Corporation (1948) 1 KB 223.
Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374.
R. v. Secretary of state for the Environment ex p. Nottinghamshire CC (1986) AC 240
R. v. Home Secretary ex p. Brind (1991) 1 AC 696.
R. (Jackson) v. Attorney- General [2005] UKHL 56.
U.S. Courts
Munn v. Illinois, 94 U.S. 113 (1877).
Lochner v. New York, 198 U.S. 45 (1905).
United States v. Carolene Products Co., 304 U.S. (1938).
French Courts
Conseil d'État 15 février 1961 Lagrange : Rec. p. 121.
Italian Courts
Con. St. sed. plen., n. 3/1993
Corte cost. sent. n. 5 del 1980
Corte cost. sent. n. 61 del 1957
ECtHR
Scordino c. Italia (1) – Grande Camera, sentenza 29 marzo 2006 (ricorso n. 36813/97)1.
License
When submitting a paper the author agrees to the following publishing agreement and processing personal data.
PUBLICATION AGREEMENT, COPYRIGHT LICENSE, PERSONAL DATA PROCESSING CONSENT
This is a publication agreement and copyright license (“Agreement”) regarding a written manuscript currently submitted via Pressto platform
(“Article”) to be published in Comparative Legilinguistics International Journal for Legal Communication (“Journal”).
The parties to this Agreement are:
the Author or Authors of the submitted article (individually, or if more than one author, collectively, “Author”) and Comparative Legilinguistics International Journal for Legal Communication (“Publisher”), address al. Niepodległości 4, 61-874 Poznań, represented by its editor in chief Aleksandra Matulewska.
§1. LICENSE OF COPYRIGHT
a) The Author and the Publisher agree that the Author grants a Creative Commons Attribution 4.0 International License, which is incorporated herein by reference and is further specified at Creative Commons — Attribution 4.0 International — CC BY 4.0 copyright license in the Article to the general public.
b) The Author grants to the Publisher a royalty-free, worldwide nonexclusive license to publish, reproduce, display, distribute, translate and use the Article in any form, either separately or as part of a collective work, including but not limited to a nonexclusive license to publish the Article in an issue of the Journal, copy and distribute individual reprints of the Article, authorize reproduction of the entire Article in another publication, and authorize reproduction and distribution of the Article or an abstract thereof by means of computerized retrieval systems (such as Westlaw, Lexis and SSRN). The Author retains ownership of all rights under copyright in the Article, and all rights not expressly granted in this Agreement.
c) The Author grants to the Publisher the power to assign, sublicense or otherwise transfer any and all licenses expressly granted to the Publisher under this Agreement.
d) Republication. The Author agrees to require that the Publisher be given credit as the original publisher in any republication of the Article authorized by the Author. If the Publisher authorizes any other party to republish the Article under the terms of paragraphs 1c and 1 of this Agreement, the Publisher shall require such party to ensure that the Author is credited as the Author.
§2. EDITING OF THE ARTICLE
a) The Author agrees that the Publisher may edit the Article as suitable for publication in the Journal. To the extent that the Publisher’s edits amount to copyrightable works of authorship, the Publisher hereby assigns all right, title, and interest in such edits to the Author.
§3. WARRANTIES
a) The Author represents and warrants that to the best of the Author’s knowledge the Article does not defame any person, does not invade the privacy of any person, and does not in any other manner infringe upon the rights of any person. The Author agrees to indemnify and hold harmless the Publisher against all such claims.
b) The Author represents and warrants that the Author has full power and authority to enter into this Agreement and to grant the licenses granted in this Agreement.
c) The Author represents and warrants that the Article furnished to the Publisher has not been published previously. For purposes of this paragraph, making a copy of the Article accessible over the Internet, including, but not limited to, posting the Article to a database accessible over the Internet, does not constitute prior publication so long as the as such copy indicates that the Article is not in final form, such as by designating such copy to be a “draft,” a “working paper,” or “work-in-progress”. The Author agrees to hold harmless the Publisher, its licensees and distributees, from any claim, action, or proceeding alleging facts that constitute a breach of any warranty enumerated in this paragraph.
§4. TERM
a) The agreement was concluded for an unspecified time.
§5. PAYMENT
a) The Author agrees and acknowledges that the Author will receive no payment from the Publisher for use of the Article or the licenses granted in this Agreement.
b) The Publisher agrees and acknowledges that the Publisher will not receive any payment from the Author for publication by the Publisher.
§6. ENTIRE AGREEMENT
a) This Agreement supersedes any and all other agreements, either oral or in writing, between the Author and the Publisher with respect to the subject of this Agreement. This Agreement contains all of the warranties and agreements between the parties with respect to the Article, and each party acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those warranties and agreements embodied in this Agreement.
b) In all cases not regulated by this Agreement, legal provisions of Polish Copyright Act and Polish Civil Code shall apply.
c) Any disputes arising from the enforcement of obligations connected with this Agreement shall be resolved by a court competent for the headquarters of the Publisher.
d) Any amendments or additions to the Agreement must be made in writing and signed by authorised representative of both parties, otherwise being ineffective.
e) This Agreement is signed electronically and the submission of the article via the PRESSto platform is considered as the conclusion of the Agreement by the Author and the Publisher.
f) Clause for consent to the processing of personal data - general
g) The Author shall give his or her consent to the processing of their personal data in accordance with the Act of 10 May 2018 on the protection of personal data and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of persons physical in connection with the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (General Data Protection Regulation) for the purpose and in connection with making publications available on the PRESSto scientific journals platform and DeGruyter platform, guaranteeing the security of services rendered, and improving them.
I HAVE READ AND AGREE FULLY WITH THE TERMS OF THIS AGREEMENT.
The Author The Publisher