Comparative Constitutional Law Academy Day 6

Editors Note: A group of W&L Law students are currently  in Germany for an intensive week-long exploration of German law and legal culture. The German Comparative Law Academy, organized by Prof. Russ Miller, brings together American and German law students for a scholarly exchange on both countries’ legal systems, with an emphasis on Constitutional Law.

by Terence Schroeder

The final official day began with a rare glimpse of morning sunlight, with the dark wintry cloth that had been draped across Erfurt a memory of days past.  An early morning tram ride under clear skies and the bright sun carried the well-traveled group through the urbane streets of Strasbourg, Europe’s co-capital city paired with Belgium.  A brief musical accompaniment preceded each radio announcement of the next station.  Just before arriving at the last major stopping point of the trip, the massive glass façade of the European Parliament building appeared, a testament to the grand image of a united Europe that the European Union seeks to emanate.

The next stop for the tram was the European Court of Human Rights (ECtHR), the adjudicative body for the European Convention of Human Rights. Yet it seemed more like we were arriving at a James Bond set piece from the 1960s. The space-age-like architecture is meant to symbolize scales, yet with glass lifts and cylindrical meeting chambers the building seemed to emulate science fiction.

The Convention includes 47 members across Europe, from Spain to Russia, with the court composed of a single judge from each member state.  Judge Zupančič is the sitting judge from Slovenia.

After an introduction by Professor Miller’s friend, Eric, we heard from Judge Zupančič, the sitting judge from Slovenia.  The court includes a judge from each of the 47 member-states stretching across the continent from Spain and Britain to Russia and Turkey.  The judge spoke of strategic simplification (reducing complexity while achieving the same purpose), observing how law has not profited from science as well other human endeavors like medicine.  For Judge Zupančič, the challenge for European courts arises in the bureaucratic nature of European judicial systems. Rachel, who works in the research division, spoke of the comparative work performed by the court’s researchers, who search for consensus among member states on legal issues pending before the court.  However, while a finding of consensus may be determinative in some cases, it may prove otherwise in other cases as countries are afforded a “margin of appreciation” for certain distinct approaches in law.  Italy, for example, can maintain its requirement to have a crucifix on display in each classroom. Eric provided an overview of the court and it’s role, emphasizing subsidiarity as the ECtHR is a court of last resort.

Before Lunch, we also heard from Tim, a graduate of Yale Law School, currently participating in a one-year clerkship with the court.  He approached the delicate balance between the court’s margin of appreciation and enforcement of common rights with a game of hangman and a discussion of Switzerland’s ability to ban an advertisement for a religious sect focused on space aliens, among other things.

In our concluding session, the tension between skepticism and optimism for the “globalization of constitutional law” came forth with full force, eliciting avid arguments from either side.  Admittedly this writer remains in part skeptical, unwilling to fully accept the notion of Tushnet’s global bankers forging common standards across the world in their travels.  Yet it is the very discussions we were privileged to share with the Erfurt group that reflect focal points in a globalization process that is happening and appears beneficial in moving forward. Our discussions were in large part a sharing of ideas, a recognition of a key place for differences amidst the commonalities we seek to establish through regional and international institutions. Constitutional law need not be what one country or one set of countries seeks to impose on the world system abroad, yet a combination of shared understandings in law and legal practice. We sought to understand our differences as the way toward bridging our systems and our ideas on Constitutions. For there are portions we will share, and there will be portions that will remain separate, as constitutions represent the fashioning of a particular political and social identity. The comparative project perhaps lies in the pursuit of understanding for our similarities and differences, to discover the context in which they subsist, in order to build upon our own distinct approaches and manage certain collective efforts.

Then came time for the concluding remarks from our principal guide in this excursion.  Unlike the previous night, Professor Miller avoided another surprise birthday announcement and expressed heartfelt gratitude for the group’s discussions and contributions through week.  The week served both as a moment of critical academic experience and a step in a broader journey set to continue through the various threads woven together through the week’s adventures.

With only a short time left, we left for to see the city, meandering through the streets around the Cathedral and finding our way through its stunning interior.  Pictures seem quite inadequate to capture the sheer height of the medieval structure that towers over the city below.  A further walk led us to a mini-carnival and the obligatory stop for carnival food, including chocolate crepes.  Completing our whirlwind tour of international cuisines, our last dinner as an international group brought us to an Indian restaurant a few blocks from the grand Cathedral of Strasbourg for, among other things, lamb tikki masala, beef vindulu, chicken curry, and garlic na’an.  Speaking of curry, just remembered to look up a recipe for curry and cardamom cookies, which apparently exist. In light of our explorations in Karlsruhe we spent one last time together to experience the local scene and see a different side of the city at night.

Saturday morning our group finally parted, marking a long week as we learned from each other and shared memories.  After a week of intense travel from Frankfurt to Erfurt to Karlsruhe to Strasbourg, it was quite a surreal moment.

With beautiful weather the Americans, as we have come to be known throughout the trip, took the last key moments to experience the beauty of Strasbourg.  From a short jaunt on the city’s meandering trams, we passed through a flea market, explored le Petit France, and crossed the old rotating bridge. Amidst the many small shops, we spent one last meal as an American group in a small café-style restaurant and the experience of local cuisine, from quiche Lorraine to tarte flambés.

Now it is time to dust off and prepare for the journey home.  And if you have made it this far, perhaps you will agree that I should consider some “strategic simplification” in my writing as well.

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