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Lindholm, Johan --- "The Viability of Constitutional/Non-Constitutional Comparison" [2010] ELECD 120; in Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim (eds), "New Directions in Comparative Law" (Edward Elgar Publishing, 2010)

Book Title: New Directions in Comparative Law

Editor(s): Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443181

Section: Chapter 9

Section Title: The Viability of Constitutional/Non-Constitutional Comparison

Author(s): Lindholm, Johan

Number of pages: 15

Extract:

9. The viability of constitutional/
non-constitutional comparison
Johan Lindholm

I. INTRODUCTION
I would like to take this opportunity to bring attention to a comparative
methodological question that I encountered while writing State Procedure and
Union Rights (Lindholm, 2007). Is it possible to compare how two legal
systems resolve a problem when one system approaches it as constitutional
and the other system approaches it as something else? Otherwise phrased, is
constitutional/non-constitutional comparison possible? My object of examina-
tion was the legal mechanisms governing what procedural rules national
courts shall apply to European Union rights. I took a comparative approach to
this topic, comparing European Union law on this subject with how the
comparable problem is resolved in the United States and soon discovered that
the two systems approach the problem from distinctly different perspectives.
In European Union law, focus has been on the individual's ability to effec-
tively enforce his or her Union law rights. There is a tendency in EU law to
approach the selection of procedural rules as a rather technical issue. In the
United States, by comparison, the issue is first and foremost approached as a
constitutional one focusing on the effects that the choice of procedural rules
has on the vertical division of power between federal and state governments
(Lindholm, 2007: 239­249).
Having discovered that the two systems approach the issue from different
perspectives I considered the methodological implications of my findings. Is
it proper or even possible to compare the European ...