This chapter advocates an ethic of “symmetric interpretation” as a solution to the challenges outlined in Chapter 1. To prevent undue politicization of constitutional law, judges should favor, when possible, constitutional understandings that are “symmetric” in the sense of conferring valuable protections across both sides of the nation’s major political and ideological divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Favoring symmetric understandings in this sense will not always be possible. When it is possible, however, favoring symmetry may provide a point of common orientation for judges with differing policy preferences and interpretive outlooks. Reflecting this approach's inherent appeal, an inchoate preference for symmetry is already evident in judges’ opinions, oral argument questions, and reasoning.

The Convention contains an inherent tension between, the one hand, the aim to provide effective protection of Convention rights and, on the other hand, the need for the ECtHR to allow sufficient freedom to the States and respect their special abilities and powers to make choices and decisions, also in light of the inherent indeterminacy of the Convention provisions. It is against this backdrop that the Court has developed its famous yet complex margin of appreciation doctrine, on which this chapter is focused. Insight is given into the development of this doctrine in the Court’s case law, its main rationale and functions, and the types of cases where the doctrine is (and is not) applied. In addition, the main factors determining the scope of the margin and their interaction are explained (common ground facter, better placed factor, nature and intensity of the interference). Finally, some attention is paid to the difference between doctrine and reality in the Court’s case law.

Michael McConnell is one of the most influential constitutional scholars of the past thirty years. He has written a great deal about religious liberty, but relatively little about how his own religious beliefs may relate to his constitutional jurisprudence. This chapter is the first to explore the connection between McConnell’s religious views and scholarship. The chapter engages with a short piece by McConnell that sketches the outlines of a “reformed liberalism.” McConnell argued that reformed Christian theology is compatible with the classical liberalism that animated the framing of the U.S. Constitution. Though he did not develop this account into a full-blown theory, McConnell’s view deserves to be considered alongside others, whether they are liberal theories that downplay the importance of religion, or Christian political theologies that reject liberalism. McConnell’s view also illuminates his scholarship on religious liberty, religion in public discourse, and judicial humility.

Hailing from North Africa, Lactantius was an imperial professor of Latin rhetoric, a position that brought him to the courts of the emperors Diocletian and Constantine. This chapter explores themes in his Divine Institutes that bear on his legal thought. In addition to setting out Lactantius’s conception of religious tolerance and its influence on the emperor Constantine’s religious policy, the chapter considers the role of “divine law” in Lactantius’s work. He found the first two principles of divine law in Matt 22:36–40 and considered them equivalent to pietas and aequitas in Cicero’s thought. Just as Roman citizens were defined by their access to Roman law, so adherence to divine law, for Lactantius, constituted both Christian and Roman identity. After Augustine of Hippo rejected Lactantius’s suggestion that the law of the state could be a faithful image of the divine law, Western medieval scholars largely ignored the legal thrust of Lactantius’s arguments. Nevertheless, his advocacy of religious tolerance gained currency in recent times, when the Second Vatican Council embraced it.

During Gregory I’s papacy (590–604), Rome was the final court of appeal for disputes over matters such as property, debt, marriage, and inheritance. Gregory pursued a judicial philosophy of moderation, discretion, and compassion. He urged judges to consider such mitigating circumstances as poverty, marital status, family history, and age. Judgments were relative, and even the law itself was sometimes best kept when suspended. In cases of reasonable doubt, it was wrong to judge as if there was certainty. Gregory required judges to think the best of defendants unless they knew otherwise. Power lay with the imperial court in Constantinople, whose archbishop claimed to be “ecumenical patriarch.” Gregory claimed moral leadership as Peter’s successor, but his political perspective was Byzantine, so that the emperor’s role in the church was beyond dispute. In Gregory’s “Christian empire” or “holy commonwealth,” church and empire constituted a single body of Christ.

This chapter examines the unfolding of politics between 1980 and 1987. President Park’s assassination by Kim Chae-Kyu in 1979 was followed by a military coup by General Chun Doo Hwan. Chun, as president of the Fifth Republic, continued authoritarian rule, albeit under the democratic 1980 Constitution.This makes the question of authoritarian legality during the Fifth Republic different from that in the Fourth Republic under the Yusin Constitution. Park’s murder trial in 1980 was one of the most pivotal political cases in modern Korea. This chapter focuses its discussion on the legal analysis of the case and its implications for the judiciary, in particular how the Supreme Court dealt with the legal and political consequences of Kim’s crime and what its decisions, both the majority and dissenting opinions, meant for the role of the court in Korea. The judicial process is examined in the contexts of the rule of law, judicial independence, and judicial activism and restraint.