Guest Editor’s Introduction: Constitutional Landmark Judgments in Europe

Eleonora Bottini

University of Caen Normandy

The Constitutional Landmark Judgments Project has arrived at its sixth season with this new symposium about Europe. The project was sparked by the intuition that explaining the context, the rationale, and the outcome of a landmark case, provides constitutional scholars from other legal systems with a privileged window into understanding a foreign constitutional system. The primary purpose of the project consists of collecting a commentary of a constitutional landmark judgment from the greatest possible number of jurisdictions. The judgment is selected and commented on by female (preferably early career) constitutional scholars from all around the world, with a particular attention to the Global South and to understudied countries, as shown by the selection of European countries for this symposium. As the project advances, its theoretical goal is consolidating as well: the construction of a definition of the concept of ‘constitutional landmark judgment’ as analytically useful for comparative constitutional lawyers.

In the next weeks we will have the opportunity to learn about constitutional landmark judgments in Estonia, Hungary, Ireland, Poland, Portugal, Romania. I am honored and grateful that my esteemed colleagues, Paloma Krõõt Tupay, Eszter Bodnàr, Maria Cahill, Anna Wójcik, Catarina Santos Botelho and Marta Vicente, Marieta Safta, took on the challenge to choose and explain constitutional landmarks in their respective jurisdictions around Europe, just like other distinguished scholars have done so in the last five blog symposia on Constitutional Landmark Judgments in the Commonwealth, Asia, Central and South America, the MENA region, and other globally recognized courts around the world. 

In the last few years, constitutional justice in Europe has entered a challenging phase. Some courts, such as the Polish Constitutional Court in 2021, have reacted to European law in a defensive way to protect a nationalist view of constitutionalism. Others, such as the German Federal Constitutional Court in December 2022, have embraced European values after initial hesitations. 

What is certain is that constitutional justice in European countries is inextricably linked to supranational law, whether it is coming from the European Union or the European Court of Human rights. Constitutional landmark judgments in European Member States reflect this relation and its inherent tensions. It is particularly interesting how the desire to join the EU is well understood by courts who can take it upon themselves to facilitate the process or, on the contrary, block the integration by standing up for national constitutional values. 

With the problematic events related to judicial independence and recent changes in the Constitutional Court of Hungary, Eszter Bodnàr chose instead to focus on a landmark judgment of 1990 that marked the country's passage to a liberal democracy by prohibiting the death penalty. The judgment was such a revolution that the South African Constitutional Court cited it in the famous Makwanyane decision.  

The Constitutional Court of Poland has been the center of the attention of the European Union institutions since it entered into a contentious relationship with EU law in October 2021. The relationship with the European Court of Justice has been particularly complicated since the Constitutional Court of Poland decided to overturn all its own case-law pre 2020 relating to EU law supremacy, marking, in the opinion of Anna Wójcik, the political capture of the Court. 

Maria Cahill’s analysis focuses on the 1986 Crotty judgment by the Irish Supreme Court. In the case, the court had to strike a balance between the Irish people’s sovereignty and the executive power over foreign relations matters. It held that some aspects of European integration must be referred to the people for their consideration via referendum. In doing so, the Court paved the road to both acceptance of some European treaties (such as the Maastricht Treaty) and the later rejection of others (such as the Lisbon Treaty). 

In Estonia, the Supreme Court was given a pivotal role in the application of EU law in the context of the accession of that country to the Eurozone. In 2006, the Court decided that if a provision of the Estonian Constitution violates EU law, it must be suspended and substituted with EU law. In light of this judgment, as Paloma Krõõt Tupay explains, it is no wonder that the Supreme Court is known for its “EU friendly” case-law. 

In Romania, the Constitutional Court stood up for the principle of gender equality as intended in European Law when it opposed a legislative initiative banning all teachers and schools from teaching anything related to gender identity theories. For Marieta Safta, the 2020 judgment shows the Court's educational role and reflects the Romanian society on gender and sex equality issues. 

Both European integration and gender equality are reflected in the two constitutional landmark judgments of the Portuguese Constitutional Court that were chosen by Catarina Santos Botelho and Marta Vicente. In fact, the 2010 judgment on same-sex marriage and the 2020 judgment on the constitutional limits to EU law are considered equally significant in terms of social change and innovation from an internal and external perspective. 

The gendered perspective of the constitutional landmark judgments project 

Scholarly opinion matters a great deal for this project. As in the previous symposia, this new chapter of the ‘Constitutional Landmark Judgments Project’ is entirely based on the participation of female scholars. The selection of invited authors is an important part of the methodological choices. My approach was to contact primarily early and mid-career female scholars. This decision creates an opportunity to expand the network of comparative constitutional law scholars while giving voice to authors who are not always the “obvious choice” to represent a jurisdiction.  

Comparative constitutional law has gendered biases, as Dixon and Versteeg have recently shown through a study of citations patterns in the International Journal of Constitutional Law - ICON. Those biases appear in both scholarly work and networks that are vital for enhancing global conversations on constitutional law. When venturing on a comparative law project, it is frequent that the main researcher contacts an expert in a given jurisdiction that she knows or that is widely considered the main reference of the jurisdiction at hand. This happens especially when looking for experts with expertise on countries that are less studied coupled with the need for scholars who are both specialized and fluent in English. In short, comparative constitutional studies largely function within networks, and “those networks remain gendered in scope and composition” (ibid p. 413). 

At least three findings of Dixon’s and Versteeg’s work are important to this project. First, articles in constitutional law cite female authors at lower rates than international law, showing that the field needs particular attention to the gender perspective on authorship. Second, male authors cite female authors at lower rates than female authors, showing that identifying female experts as the reliable source on a jurisdiction can help create a virtuous cycle, as they will be more likely to cite other female authors of their jurisdiction. Third, and most importantly, “highly cited authors are less likely to be female” (ibid p. 426.), making “usual suspects” experts in a specific jurisdiction more likely to be male authors, who are themselves more likely to cite other male authors, etc. This creates a vicious cycle that this project intends to interrupt. 

Of course, Dixon and Versteeg’s study only applies to ICON authors, but given that similar findings have been published in other disciplines, such as political science, their study should be considered as relevant for the field of comparative constitutional law as a whole. The gendered perspective of the Constitutional Landmark Judgment project started from an intuition I had as an observer of the field, which is confirmed by such findings. The resulting decision has been to exclusively contact female-identifying authors to write the commentaries of the judgments. Such a choice is not isolated in legal scholarship but bears significant differences with some of the most prominent gender-related projects. The main example is certainly the feminist judgments projects that have been undertaken by many groups of scholars in the last two decades. 

Starting with the Canadian project of the “Women’s Court of Canada” in 2004, many collectives have applied the same methodology to judgments of their jurisdiction (for instance, the UK, Australia, Ireland, New Zealand, Scotland, India, and the US). Those projects aim to rewrite judicial opinions from a feminist critical perspective to demonstrate that such an angle would have changed the outcome of important (landmark) judgments. Such an endeavor originates from the premise that female and feminist scholars have a different view of the law, which could lead to  different outcomes. 

This is not what the Constitutional Landmark Judgment project aims at. I do not argue that the choices of cases and commentaries are different because their authors are female-identifying scholars, nor are they committed to adopting a feminist approach to their writing. The methodological choice of selecting exclusively female scholars for this project is more about the “politics of presence” than it is about the “politics of ideas” as developed by Anne Phillips. Based on her work, it appears that diversity and inclusion (and gender parity) are not only values that must be encouraged by democrats as ideas. They must also be reflected in the composition of the assemblies or the groups of those who carry the ideas, especially when the presence/representation of minorities is the issue at stake. 

This project aims at the formation of a scholarly network of comparative constitutional law female scholars, one which will hopefully create a virtuous circle in expanding the references for comparison both in terms of countries and expert authors. 

Eleonora Bottini is Professor of Public Law at University of Caen Normandy. 

Suggested citation: Eleonora Bottini, ‘Guest Editorial: Constitutional Landmark Judgments in Europe’ IACL-AIDC Blog (31 October 2023) https://blog-iacl-aidc.org/2023-posts/2023/10/31/guest-editors-introduction-constitutional-landmark-judgments-in-europe