Let Judges Speak for Themselves: Can Comparative Constitutional Case Law Help Conceptualize Universal Standards in the Fight against COVID-19?

Abstract

This contribution provides an examination of recent constitutional case law concerning the judicial review of emergency measures adopted in the fight against the COVID-19 pandemic. In particular, the aim of this comparative analysis is twofold: On the one hand, its purpose is to verify whether Supreme Courts were able to engage with the limitation of fundamental rights without being too deferential as it could be expected during emergencies; on the other hand, it attempts, to demonstrate that it is possible to conceptualize universal standards for the protection of fundamental rights during health emergencies through what is called comparative constitutional case law (CCCL). The analyzed case law belongs to different legal orders, namely, Kenya, Kosovo, and Slovenia; however, all the cases concern freedom of movement and its legitimate (possible) limitations. The analyses of different cases are provided separately, and in the last paragraph some conclusive hypotheses have been drawn and left open for a future debate.

Keywords: comparative constitutional case law; human rights; COVID-19