This article begins with a discussion of the constitutionalization of affirmative action and its side effects. It examines the legal underpinnings of affirmative action in two relatively well-endowed developing countries and former British colonies — Malaysia and South Africa — where the disadvantaged groups that receive the benefits of affirmative action are numerical majorities from the start. It also considers the case of India, where the disadvantaged groups targeted for affirmative action initially are numerical minorities. The discussion then turns to the non-constitutionalization of affirmative action and its side effects. In countries where affirmative action has not been constitutionalized and where the beneficiaries (women excepted) are minority groups, the legal validity of a program of this kind will depend upon whether it meets a set of formal requirements. The most important of those is arguably that the outcome of the decisional process by which scarce goods are being allocated should not be exclusively determined by group membership. The soft, gender-focused, ‘discrimination-blocking’ EU affirmative action model and the (exceptional) US affirmative action regime are examined.
Ulrich K. Preuß
Associative rights cover those constitutional guarantees which deal with the joint actions of individuals. The promise of associative rights to individuals is the most effective means of their empowerment in the polity. At the same time, this guarantee gives rise to a decentralized power structure in society which has a major bearing on the modes of how collective decisions are made in the polity. Three constitutional rights are pertinent in this respect, ranging in the order of increasing empowerment and, consequently, structural effects on the polity: the right to petition for the redress of grievances, the right to the freedom of assembly, and the right to the freedom of association. This article presents a comparative overview of associative rights and considers only those constitutions which effectively shape the character of the polity, where, in other words, collective actions of citizens are an inherent element of an entrenched sphere of socio-political autonomy.
This chapter examines the legal status and consequences of the asymmetrically federal provisions included in the Indian Constitution. In particular, it considers constitutional amendments relating to autonomy arrangements in India’s North-eastern region, along with the ‘special status’ of Jammu and Kashmir. After providing an overview of the significance of asymmetric federalism in India, the article discusses the administration of tribal areas under the Fifth and Sixth Schedules. It also explores provisions aimed at mitigating intra-State inequalities in the States of Gujarat, Andhra Pradesh, Maharashtra, and Karnataka; the Indian Supreme Court’s rulings on the asymmetric features of the Constitution; and the role of the courts in upholding asymmetrical provisions and protecting the rights of territorially concentrated minorities in the context of democratic politics.
This article explores the connections between bioethics and basic rights partly by analyzing the basic legal norms of bioethics, and partly by comparing thematic cases from the jurisdictions of the European Court of Human Rights and the US Supreme Court, as well as some cases from other jurisdictions. It focuses on two major lines of thought in contemporary bioethics: the first is concerned with the boundaries of life (e.g., issues of embryo research, assisted reproduction, and end of life decisions) and the second is related to the contemporary exploration of the frontiers of the human body (issues such as the use of human tissues and human DNA for research and other purposes).
Carving Out Typologies and Accounting for Differences Across Systems: Towards a Methodology of Transnational Constitutionalism
This article outlines and assesses the role of ‘typologies’ in comparative constitutional thought. It discusses the transnational context of comparative constitutionalism, constitutionalism in world society, the form and substance of constitutionalism, and the law's troubled relation to society.
This article highlights the trials and tribulations of citizenship in a world of increasing mobility and diversity. The discussion is divided into three parts. Section I provides a concise overview of citizenship's multiple meanings and interpretations. Section II constitutes the bulk of the discussion. It begins by exploring questions of membership acquisition and transfer, which legally determine ‘who belongs’ within the boundaries of a given political community, either by birth or naturalization. It then assesses three recent developments: the growing recognition of dual nationality; the revival of debates about involuntary citizenship revocation; and the ‘cultural turn’ in citizenship discourse, which often makes inclusion in the body politic more difficult for those deemed ‘too different’ from the majority community. Section III charts the major challenges and opportunities facing citizenship in the twenty-first century.
John S. Bell
Comparative administrative law is a long-standing discipline. The study of other administrative law systems both in order to understand one’s own system better and to find models for improvement has been occurring for over 150 years. It is closely bound up with national institutions and traditions, as well as national constitutional values and ways of operating. Any comparative approach has to take full account of the institutional context in which a particular problem or procedure occurs and to ensure that full account of these nationally specific features is taken before any attempt is made to generalize or compare. This article describes the scope of the subject, the values served by administrative law, and influences shaping administrative law. It also compares the powers, organizations, and procedures of the administration, as well as legal redress.
Stephen Gageler and Will Bateman
This chapter points out the orthodoxy in Australia of consulting foreign law as an ordinary part of the interpretation and application of ‘constitutional provisions with a common genetic or genealogical root’. Australian constitutional experience has demonstrated for more than a century how comparative constitutional analysis can illuminate the resolution of constitutional issues arising within a domestic legal system. In its exposition and development, no less than in its inspiration, Australian constitutional law has benefited from the consideration of foreign precedent. Constitutional ideas which have found expression in foreign judicial pronouncements have been appropriated and adapted when found to shed light on domestic constitutional issues, and discarded when not. That approach to the evaluation and utilization of foreign constitutional precedent has been nothing more than an aspect of the application of common law methodology to constitutional interpretation.
This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.
Comparative Constitutional Law: A Contested Domain: A. Comparative Constitutional Law: A Continental Perspective
Armin von Bogdandy
This article presents an analysis of comparative constitutional law. This study compares some elements of the development of constitutional scholarship in Europe. The emerging European constitutional scholarship as a form of comparative constitutional law scholarship cannot be understood without looking at the traditions of scholarship at the level of national constitutional law. In the continent, the decisive form of scholarship can be described as one of doctrinal constructivism. Doctrinal constructivism represents a singular combination of theory and practice, and stresses the practical importance of constitutional scholarship in many European countries.
Vicki C. Jackson
Methodologies of constitutional comparison vary at least as much as, if not more than, methodologies more generally in comparative law. Methods vary in what they aim to do and in who is engaged in comparisons, particularly if the comparative enterprise is defined broadly to include doctrine produced by courts, features of government, and the processes of constitution-making and adoption. This article discusses the different communities of comparative constitutional analysis and identifies some methodological challenges of comparative constitutional analysis.
This article challenges the idea that the concept of the state is a central feature of constitutional law everywhere. Sociologists have stolen a march on jurists by questioning whether the state is a universal phenomenon. The argument here is that only continental European scholarship has come up with what can be judged a complete theory of the state. By comparison, Anglo-American constitutional law scholarship has a somewhat incomplete conception of the state. To demonstrate this, the analysis relies on the usual threesome invoked for defining the state (a government, a territory, a people), which presupposes a somewhat fictitious similarity among all states, but on an examination of the relations of the state, first, with the concept of constitution, then with the concept of sovereignty, and finally with the concept of institution.
This article examines three topics that have persistently arisen in connection with discussions of constitutions: What is the relation between a constitution and a ‘nation’ or a ‘people’, understood as those who reside within the territory for which the constitution is a constitution? What is the relation between written and unwritten principles of a constitution? And, to what extent must constitutions and their constituent elements be more permanent than ‘ordinary’ legal rules, and by what mechanisms is the requisite degree of permanence maintained?
This article is organized as follows. Section I examines a procedural approach to the constitution. According to the procedural reading, a just constitution has to be neutral among different views and establish a fair procedure through which rival parties seek approval from the people. In order to study the procedural approach, it seeks support in John Rawls's Theory of Justice, where the constitution is examined as an exemplar of imperfect procedural justice. Section II distinguishes between two different interpretations of the procedural constitution, one related to libertarianism and the other to egalitarianism. These interpretations allow us to reflect on the neutral character of the procedural constitution. Section III contrasts the procedural approach with an alternative, republican understanding of the constitution. In order to illustrate the differences between these theories, the article examines their conflicting views on whether or not a just constitution should incorporate a list of social rights in its bill of rights.
This chapter examines the historical and jurisprudential dimensions of the U.S. Constitution in relation to the constitutions of other countries in order to understand its place in the context of a “globalizing” constitutionalism. It first looks at the debate over comparative constitutional law and how it relates to the controversy involving the Supreme Court over the use of foreign cases in its own jurisprudence. It then considers the role the Constitution has played as a model, especially its enduring contribution to constitutionalism and constitution-making processes around the world. It also discusses the ways in which many constitution-makers looked for alternative models premised on the fundamental elements of the American constitutional system in terms of judicial review, federalism, and separation of powers. It argues that the U.S. Constitution and the jurisprudence that has flowed from it has often served as an anti-model, rather than as an explicit model.
Claude Klein and András Sajó
This article considers the procedural and resulting legitimacy issues of constitution-making and fundamental constitutional amendment. These procedures are partly related to the different historical scenarios and substantive (material) factors that give rise to e-constitutions. It considers only those political and economic factors which contribute to specific constitution-making features. In this regard, revolutions, regime change, and state-building are particularly relevant. In the case of revolutions there is a deliberate departure from, a rupture with, the existing constitution and the processes of legal and therefore legitimate change. This raises a fundamental issue of legitimacy: What gives the right (authority) to enact a new constitution? The article refers to the process that is not based on pre-existing rules of procedure as one of creation and the related constitution-making is called creation ex nihilo. In the case of regime change or reform the procedural modalities of the existing constitution might be observed.
This chapter describes the constitutional aspects of commercial law and focuses on division-of-powers issues relating to banking, bankruptcy, corporate, and securities law. The chapter makes two important observations. First, the broader jurisdictional lines in commercial law areas are mostly settled. Banking and bankruptcy are areas of federal jurisdiction, for example, whereas the provincial and federal governments have overlapping jurisdiction over corporate law. Securities law is an exception. Although securities law has historically been under provincial control, the appropriate role of the federal government has been the subject of recent controversy and litigation. Second, the chapter explains that although the provincial and federal governments have separate constitutionally protected roles in various areas of commercial law, the role is rarely exclusively assumed (or the field occupied) by one level of government. That is, provincial legislation in one area of law impacts what is otherwise federal constitutional jurisdiction, and vice versa.
Alec Stone Sweet
This article provides an introduction to the basic institutional features of constitutional courts (CCs), as well as an overview of the small but growing comparative literature on their design, function, impact, and legitimacy. It presents the CC as an ideal type, with its own functional logics, and surveys the comparative scholarship seeking to explain commonalities and differences across systems. It emphasizes inter-disciplinarity, in part, because political scientists have been at the forefront of empirical research and, in part, because powerful CCs have shaped and reshaped their own political environments. Successful CCs routinely subvert separation of powers schemes, including elements on which their legitimacy was originally founded. In consequence, new legitimacy questions and discourses have emerged.
‘Constitutional identity’ is an essentially contested concept as there is no agreement over what it means or refers to. Conceptions of constitutional identity range from focus on the actual features and provisions of a constitution — for example, does it establish a presidential or parliamentary system, a unitary or federal state — to the relation between the constitution and the culture in which it operates, and to the relation between the identity of the constitution and other relevant identities, such as national, religious, or ideological identity. This article discusses the place and function of constitutional identity; the identity of constitutional models; identity and constitution-making; identity through constitutional interpretation; and the problem of identity in supranational constitutions.