Transnational judicial dialogue in case law related to academic freedom

Monika Stachowiak-Kudła

Abstract

Courts have different preferences regarding the use of citations to the jurisprudence of international tribunals and constitutional courts of foreign countries, regarding the interpretation of national guarantees of fundamental rights in their jurisprudence. Similarly, they refer to or do not refer to the international conventions, e.g. the Charter of Fundamental Rights of the European Union. It would be expected that in the countries where a given right or freedom is not expressed explicitly in the constitution, where it lacks a legal defi nition or where there is a dispute as to the essence of these rights and freedoms, constitutional courts are more likely to refer to international conventions and the jurisprudence of international tribunals and constitutional courts of other states. The article delves into this problem by analyzing 99 judgments on the dispute over the violation of academic freedom taken by the constitutional courts of 10 European Union countries. An analysis of the case law has shown that only some countries use the case law of international tribunals and constitutional courts of other countries in order to interpret the national guarantee of academic freedom. The analysis additionally answered an important legal question: Can we defi ne causes that help to explain why this is happening? And a normative question: Is that justifi ed? There is no agreement in literature whether such a trend is appropriate at all.
Author Monika Stachowiak-Kudła (FASS / DALPP)
Monika Stachowiak-Kudła,,
- Department of Administrative Law and Public Policy
Pages17-29
Publication size in sheets0.6
Book Pachocka Marta, Kłos Agnieszka, Misiuna Jan, Szczerba-Zawada Aleksandra (eds.): European Union and its values: Freedom, solidarity and democracy, 2020, Warszawa, CeDeWu, ISBN 978-83-8102-370-2, 150 p.
Languageen angielski
Score (nominal)20
Score sourcepublisherList
ScoreMinisterial score = 20.0, 25-05-2020, MonographChapterAuthor
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