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date: 25 August 2019

Introduction

Abstract and Keywords

This introductory article first sets out the book's purpose, which is to provide an overview of the current status of comparative constitutional law as a discipline and an accounting of fundamental constitutional developments, concepts, and debates as they emerge through the lenses of that discipline. The article is organized as follows. Section I provides a brief overview of the history of comparative constitutional law. Section II focuses on the uses and purposes of, and the challenges confronting, comparative constitutional law. Section III addresses preliminarily the key issue of transplantation of institutions and norms from one constitutional system to the next. Section IV discusses in summary fashion some of the most salient methodological issues that have an important bearing on work in comparative constitutional law. Finally, Section V accounts for the structure and organization of the Handbook and briefly situates each of its nine parts in the context of the project as a whole.

Keywords: comparative constitutional law, constitutional system, constitutional developments, methodological issues

  1. I. The History of Comparative Constitutional Law 2

  2. II. Comparative Constitutional Law: Uses, Purposes, and Challenges 9

    1. 1. Uses 9

    2. 2. Purposes 10

    3. 3. Challenges 12

  3. III. Constitutional Borrowing and Transplantation 13

  4. IV. Methodology 16

  5. V. Structure and Organization of the Handbook 19

The purpose of the present volume is to provide an overview of the current status of comparative constitutional law as a discipline and an accounting of fundamental constitutional developments, concepts, and debates as they emerge through the lenses of the said discipline. The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and center. The prominence and visibility of the field, both among judges and scholars has grown exponentially, particularly in the last decade. Even in the United States, where domestic constitutional exceptionalism has traditionally held a firm grip, use of comparative constitutional materials has become the subject of a lively and much publicized controversy among various justices of the US Supreme Court.1

The rapid growth and expansion of the field was propelled by the transitions to constitutional democracy in Eastern and Central Europe after the fall of the Berlin Wall in 1989, followed by the making of many constitutions in the 1990s, including in South Africa and in many South American countries. Many of these new constitutions have ‘imported’ constitutional norms from abroad—the South African Constitution explicitly mandates that the country's Constitutional Court consider foreign law when interpreting the domestic Bill of Rights—and many of the considered foreign constitutions have explicitly refrained from incorporating some of the latter's provisions into their new constitution.2

Another important factor in the growth of comparative constitutional law is the ‘internationalization’ of constitutional law through implementation of the provisions of international (p. 2) covenants such as the European Convention on Human Rights. Though such covenants are not formally or technically constitutions, their provisions—particularly as interpreted by courts such as the European Court of Human Rights—are the functional equivalent of constitutional norms. Moreover, a veritable dialogue among judges has emerged as a consequence of this process of internationalization. Thus, for example, judges on the European Court of Human Rights often consider the national constitutional jurisprudence in the relevant field—for example, free speech—of states that are party to the Convention. Conversely, constitutional judges in the latter states frequently consult decisions of the European Court both for purposes of conforming the respective jurisprudences where feasible and of taking into account valuable judicial insight on the issue at hand.3

On the other hand, comparative constitutional law is a subfield of comparative law (and it rates a mere 35-page entry in the 1,400-page Oxford Handbook of Comparative Law). Comparative constitutional law, however, is in several respects a standout subfield that seems more subject to contest and controversy, both on methodological and ideological grounds, than other subfields. Traditionally, comparison in private law has been regarded as less problematic than in public law. Thus, whereas it seems fair to assume that there ought to be great convergence among industrialized democracies over the uses and functions of commercial contracts, that seems far from the case in constitutional law. Can a parliamentary democracy be compared to a presidential one? Or, a federal republic to a unitary one? Moreover, what about differences in ideology or national identity? Can constitutional rights deployed in a libertarian context be profitably compared to those at work in a social welfare context? Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically homogeneous counterparts?

These controversies add an important dimension to the field of comparative constitutional law and they contribute to carving out a distinct domain of inquiry that displays many links to constitutional law, public law in general, and comparative law while remaining distinct from the latter in several significant respects. Furthermore, the subject matter coming within the sweep of comparative constitutionalism has been analyzed from the various perspectives of many different disciplines beyond law, including political science, political theory, and philosophy. Representatives from all these disciplines are among the contributors to the present Handbook and they complement, supplement, and enrich the insights emanating from within the discipline of law.

In order to place the contributions to this volume in their proper context, this Introduction proceeds as follows. Section I provides a brief overview of the history of comparative constitutional law. Section II focuses on the uses and purposes of, and the challenges confronting, comparative constitutional law. Section III addresses preliminarily the key issue of transplantation of institutions and norms from one constitutional system to the next. Section IV discusses in summary fashion some of the most salient methodological issues that have an important bearing on work in comparative constitutional law. And, finally, Section V accounts for the structure and organization of the Handbook and briefly situates each of its nine parts in the context of the project as a whole.

I. The History of Comparative Constitutional Law

The jacket design of this Handbook reproduces ‘The Ideal City’, a renaissance painting attributed to Piero della Francesca. It represents a harmonious public space, perhaps with reference to Plato's plan of the lost Atlantis. It is a Utopia: no citizens, no mess. In contrast, in a competing (p. 3) representation of the Ideal City, Fra Carnevale combined idealized Roman and Florentine buildings, again with balanced harmony, but featuring humans populating the space. It is considered an allegory of good government through planning. The ruler takes care of his subjects, and safeguards the composite elements of public order: religion, security, and recreation.

The plan of the city is its constitution. Physical structure and the structure of rules combine under a single master plan, appropriate for the community living together in the public space carved out pursuant to the governing plan. In fact, in Ancient Greece, when a new colony was established, the urban plan went hand in hand with the constitution: both followed the master plan of the mother-city (the metropolis). The physical and political plans of the city were intended to correspond to some (divine) truth or ideal harmony. The plan of the ideal city mirrors that of the ideal metropolis. Cities are not exactly alike, but all conform to a recognizable type. Do not constitutions similarly attempt to emulate the ideal constitution of the ideal metropolis of their time? Cannot comparative constitutionalism be enlisted in the quest to live up to an elusive measure or standard?

The conception of an ideal government can be useful for purposes of comparison with actual governments. Plato's ideal, however, was so unachievable that it did not invite comparison to contemporaneous actual Greek states. Aristotle, on the other hand, was concerned with actual government, and thus meticulously compared abstract forms of government with actual, Real-existierende states in order to find out how best to approximate the relevant ideals. At its beginnings, the science of government concentrated on thorough and exacting comparison: it is quite likely that Aristotle undertook to compile a collection of the constitutions of 158 Greek city states for such reason (albeit that only his analysis of the Athenian Constitution survives). Significantly, it was on the basis of this comparative material that Aristotle developed his theory of government in his Politics.

Notwithstanding the collapse of government and the vanishing of the corresponding political science in antiquity, and notwithstanding the subsequent prevalence of religion and custom in matters of government, the comparative tradition did reemerge with the advent of modern political thought. Notably, Machiavelli's precepts were based on observations grounded in contemporary and historical practices of government. Whereas normative considerations and even extended use of biblical interpretation were common in the formation of modern constitutionalism,4 the political science of the modern era would be unthinkable without continued reference to a rich anecdotal tradition of comparative work on government practices. Montesquieu's empiricism in the Spirit of the Laws provides perhaps the most notorious example of historical comparison, continuing the tradition of using comparative materials to generate normative conclusions, in this case culminating in the establishment of the foundations of modern constitutionalism.

Comparative constitutional inquiry became particularly relevant in the aftermath of the revolutions in the United States and France. The Founding Fathers and the French revolutionaries had to invent a new organization of the state and they could rely only to a limited extent on pre-existing structures. The empirical evidence offered by comparison was both a source of inspiration and of legitimation. In the Federalist Papers, references to foreign experiences are made for justificatory purposes.5 In France, the translation of a collection of US state constitutions became one of the most important intellectual sources of reformist and revolutionary (p. 4) political thought,6 and comparisons with the US and English arrangements were common in the debates of the National Constituent Assembly.7 In the liberal constitution-making process of the early nineteenth century, comparison with the various French constitutions was standard procedure and Latin American constitution-making often relied on a consideration and comparative analysis of the US constitution.8 In liberal constitutional theory comparison, in some cases supporting developmental theories continued to be relevant, as was the case with J.S. Mill's Representative Government in matters of election law.9 Constant, Tocqueville, and Eötvös used constitutional comparison extensively,10 and Bryce developed a more systematic approach marked by his distinction between rigid and flexible constitutions.11 However, by and large, constitutional law became at this stage an independent though somewhat narrow subject, and increasingly its consolidation meant the abandonment of comparison.

Characteristically, in Germany before the consolidation of the Empire and of its public law system, comparison was an important source of scholarly and reformist inspiration.12 In fact, the nineteenth-century German attempt to tame the administrative (police) state necessitated reliance on comparative public law, and the theoretical and practical elaboration of the constitutional theory of the Rechtsstaat was influenced by comparison and had a major impact in Europe through the translations of the concept. Hence, the interest in comparing administrative justice as a freedom enhancing control over the administration. Even Dicey's Introduction to the Law of the Constitution13 ventured into comparative studies. Interestingly, Dicey's misunderstanding of the French system can be compared to the inspiring errors of Montesquieu regarding checks and balances in Britain, a century earlier.14 With the establishment of positive constitutional law in the nineteenth century, international comparison lost much of its appeal and legal science and public law practices became increasingly self-referential, as if the existence of a national constitution would have made foreign law irrelevant. This was the age of the exegetes, whose task was not to provide creative solutions but to guide authoritatively and reliably the lawyers and administrators through the maze of an ever-increasing body of laws. It seems that the prevalence of legal positivism successfully devalued all sources of interest other than the text of the positive legal norm. There was little need for comparative inspiration in a legal world where the lawyer is interested in serving existing power rather than the freedom of citizens. Legal science became self-centered and oriented toward systematization and thus its methodological goals did not leave much space for comparison.15

(p. 5) But even in this era dominated by positivism, the academic interest in comparison survived.16 In this context, comparison of governments became a focus that was intended to satisfy intelligent curiosity, and partly to inspire change.17 Georg Jellinek, a leading exponent of legal positivism, developed a theory of the universalism of human rights relying on a comparative methodology.18 For his part, Adhémar Esmein, who also considered the state and its sovereignty a legal phenomenon, stressed the relevance of using some comparison in discussing French constitutional law.19 Even Duguit, whose scholarship was to a considerable extent directed against Esmein, continued to include comparative treatises in his work.20 For Duguit, the ‘foreign’ experience served as an additional social fact that he used to fight juridical metaphysics.21 Édouard Lambert, on the other hand, instituted (parallel to Henri Capitant) a civil law-based comparative law in France and the first French comparative law institute in 1921. Moreover, Lambert's description of the US jurisprudence pertaining to labor may be considered a precursor of the treatment of foreign constitutional law as an element comparative law.22 In short, whereas legal positivism may not have been particularly favorable to the comparative approach, the latter served the practical needs of public law reform and constitution-making.23

In spite of the existence of a comparative interest in academic constitutional law (exemplified by the first international conference in 1900 and by the establishment of the ‘Société de legislation comparée’ in Paris in 1869), modern comparative law (as a semi-autonomous discipline) originated in the efforts of private law experts. This might be related to international commercial interests and also to the desire to export national civil law codes. Such ‘imperialism’ was certainly present in the promotion of the German Civil Code. The theories of comparative law reflected considerations and concepts of private law, and constitutional law was often neglected in the comparative study of great legal systems. The low profile of constitutional law in comparative law may be due to the difficulties in finding universal elements in constitutional law. Nevertheless, already in the period between the two world wars, comparative constitutional law became established as a separate scholarly discipline first and foremost thanks to the scholarship of Boris Mirkine-Guetzevitch.24 Steeped in the positivist tradition, the latter hoped that the emerging state of law would give expression to democracy in a legal language, and he wished in particular that the post-First World War constitutions would provide for their own protection by deploying judicial review. One can attribute to him the idea of the internationalization of constitutional law in the sense of applying the binding force of international law for purposes of strengthening the constitutions of nation-states.

(p. 6) While issues pertaining to comparative constitutionalism continued to be the subject of discussion within political science as part of government studies,25 comparison became more popular due to the coming of age of rationalized parliamentarianism, followed upon its collapse by the growth of dictatorship. To a significant degree, interest in comparative constitutionalism was the result of emigration. Constitutional lawyers and legal theoreticians, being forced out of countries under ruthless dictatorship were particularly concerned with the weakness of the liberal state and motivated to find a theoretical answer to the apparent success of totalitarian regimes. The emerging scholarship includes such classic writings at the intersection of comparative constitutional law and political science as Loewenfeld's articles on Militant Democracy26 and Naumann's Behemoth27 and Fraenkel's Dual State.28 Clinton Rossiter's 1942 dissertation, Constitutional Dictatorship: Crisis Government in the Modern Democracies,29 pertains to this group, though Rossiter was born in the United States and had no law degree.

Comparative constitutional law scholarship did not emerge as an academic discipline until after the Second World War.30 In post-Second World War Europe comparative constitutional law was influenced by the East/West divide. Foreign constitutional systems were often studied as part of Soviet legal studies, and, respectively studies on Western bourgeois state law. Comparative law was understood as the study of foreign systems, with a heavy ideological accent.

Whereas he was still operating within political science, Carl J. Friedrich, a first class scholar of German constitutional law, gave rise to a paradigm shift, by concentrating on the constitutionalization of modern government and stressing the importance of judicial review.31 Friedrich, while still concerned with power as the central issue for modern political science, used constitutional law comparatively.32 By doing so and by also engaging in historical comparison, Friedrich led constitutional theory's move away from the then prevailing paradigm towards a value-oriented approach. Friedrich summarized the ensuing paradigm shift in the following terms: ‘If constitutional law begins to ask what people actually do under a particular constitution, and not merely what battle of words they engage in for the settlement of conflicts among them, the constitutional lawyer becomes a political scientist (one hopes).’33

The shift towards a value-based approach is certainly rooted in the coming to power of totalitarian regimes. It resulted from the discontent with positivism in political science and law as the latter had proved intellectually impotent against totalitarianism. While not explicit, this normative commitment to constitutionalism remains influential in comparative constitutional law, even if this results in the neglect of the study of non-liberal regimes. The interest in (p. 7) comparison motivated by the shift to a value-based approach continued to sustain a comparative interest after the Second World War, as part of Cold War thinking, as liberal democracies defended their system in opposition to communist totalitarianism. The post-war period was characterized by an international human rights revolution, with various waves of state formation and democratization, coupled with increasing judicialization of constitutional law.34 Such comparative interest drew further inspiration from the enhanced protection of fundamental rights that issued from the US Supreme Court starting at the beginning of the 1940s. This robust protection was inspired by a political desire to define the United States as a bulwark of freedom in the face of totalitarianism, the arch enemy in the Second World War and in the Cold War. As A.L. Goodhart wrote it in his Foreword to Bernhard Schwartz's American Constitutional Law, a book with comparative references, as it was written for an English audience:

The English reader will be interested to find that some of the problems which are now being considered in the United States are also of immediate importance in Great Britain. The first is concerned with the maintenance of our civil liberties at a time of ‘cold war’. To what extent, for example, should freedom of speech be accorded to those who advocate the forcible overthrow of the existing system of government? The second is concerned with the modern development of the administrative process.35

Although Schwartz's work is a standard constitutional law treatise, it is characteristic that as a source for the study of ‘foreign’ constitutional law, it was considered as possessing lasting importance as part of the political science literature.

It is particularly noteworthy that in the transition from comparative government studies to comparative constitutional law as an academic discipline within the ambit of legal scholarship the interest in the subject matter proved to be primarily ideological. Indeed, a principal intent was to boost liberal constitutionalism against totalitarianism, and the elaboration of this new field was more the result of dissatisfaction with the prevailing positivistic method in law and government scholarship than an attempt to carve out a discipline or subdiscipline within jurisprudence. Comparison was intended to highlight theoretical trends and the object of the comparison became primarily government practice as the source and consequence of public law.

The above phenomena occurred in an international context where the level of state interaction and interdependence contributed to the spreading of more intense and new forms of constitutionalism. These trends created new needs both within law and in government, and these related in particular to constitution-writing as a matter of borrowing and international cooperation. However, according to Mark Tushnet, it was only the transition to democracy beginning in 1989 that has created the field of comparative constitutional law, resulting from the practical needs of constitution-drafting and institution-building, which produced a critical mass of knowledge and experts.36

Furthermore, the preservation of comparative constitutional law as a separate discipline with full-fledged practical relevance requires constitutional adjudication oriented toward comparison. In this respect, the role of international courts, and suggested or mandated comparison as is the case in the Constitution of South Africa which recognizes foreign (p. 8) constitutional law as a legitimate source of constitutional decision-making, play a crucial role. Concurrent with changes in national constitutional law and its internationalization, comparative constitutional law gradually became a rather self-contained discipline with its own methodology. Beyond its descriptive concerns, the discipline is confronted with a fundamental ideological dilemma as the liberal quest for identity across borders clashes against the pursuit of differences among constitutional arrangements.

Comparative constitutional law as an academic discipline has been slowly and gradually integrated into legal education. In the United States, Thomas Franck wrote a path-breaking volume that responded to the experiences of decolonization and resulting state-building that intended to present the transplantation of Anglo-American constitutional law into the newly developing countries of Africa and Asia.37 The book (presenting a good number of cases—and reflecting therefore the specificity of modern constitutional law, namely constitutional law as a matter for litigation) was based on the assumption that those nations have accepted these as ‘the traffic rules of the economic-social-political road to modernization’. This was followed by more collections in the late 1970s.38 In France, comparative constitutional law as an academic subject was only gradually accepted in the legal curricula, though it was present as a political science subject matter. Like in Germany, the increased interest in comparative constitutional law was originally accommodated within national constitutional law. With the increased juridicization of constitutional law, that is, with the recognition that constitutional problems can be solved increasingly with the adjudicative tools of the rule of law state, legal interest in comparison was increasingly accommodated within a stand-alone discipline.39 Comparative constitutional law was often part of the very movement towards the juridicization of constitutional law, as in the case of France where the importance of constitutional adjudication was recognized through comparative studies, in particular thanks to the activities of Louis Favoreu and his collaborators.40 The increased interest in case law resulted in a new emphasis on rights, while earlier scholarship was more concerned with structural issues of governance. The use of comparative method was well established in the German legal sphere but it has remained somewhat secondary in the prevailing theoretical study of the state which was not constitution-centred.41 Systemic specialized textbooks are still rare and relatively recent.42 The recognition of the practical importance of the comparative method is, once again, intimately related to the increased importance of comparison in constitutional adjudication. For German legal science this means a partial paradigm change in legal methodology: comparison is understood as a new (fifth) method of legal interpretation.43

While comparison became to varying degrees integrated into domestic constitutional law (in many countries, for the simple reason that their constitutional system became part of a supranational system with its own supranational constitutional law) and therefore it is (p. 9) inherently related to national constitutional law studies, it became an academic discipline in its own right, reflecting not only upon commonalities and differences in national systems, but it is also a reflection upon the interaction of national and supranational constitutional institutions. This current stage of the development and its dilemmas is the subject matter of the Handbook.

II. Comparative Constitutional Law: Uses, Purposes, and Challenges

1. Uses

One can discern four principal uses of comparative constitutional law. Two of these, uses of foreign constitutional materials in constitution-making—broadly understood as encompassing constitutional revision or amendment—and in constitutional interpretation are in the hands of actors or participants in the constitutional arena. The other two uses, providing descriptive accountings and elaborating normative assessments of participant dealings with comparative constitutional materials, in contrast, are primarily reserved for those who assume the role of observers, namely scholars in law and in other relevant disciplines. Examples abound of actual uses of constitutional materials originating in a jurisdiction other than that in which the actual users of such materials carry out official functions in relation to their own constitution. Thus, for example, various constitutions, including the Canadian Charter of Rights and Freedoms (Constitution Act of 1982, Pt I), have influenced constitution-making in South Africa, New Zealand, and Hong Kong and the Basic Law in Israel.44 Similarly, such uses have also occurred in constitutional interpretation, and are even sometimes explicitly endorsed by constitutions themselves, as in the South African Constitution, which, as noted above, specifically empowers courts to consider foreign law when interpreting the Bill of Rights.45 These uses, moreover, have spread to transnational settings, where their constitution-making and their constitutional interpretation dimensions have, on occasion, been combined.

A prime instance of this occurred when the European Court of Justice (ECJ), the EU's highest judicial body, began filling constitutional gaps at a time when the governing treaties of the transnational unit that is now the EU lacked any fundamental rights-related provisions. In its landmark 1974 Nold decision,46 the ECJ stated that in order to safeguard fundamental rights in the context of EU-imposed regulation, it had to start from the common constitutional traditions of the member states. Accordingly, the ECJ ‘cannot … allow measures which are incompatible with fundamental rights recognized and guaranteed by the constitutions of those States’.47 What Nold launches is both a piecemeal ECJ-driven constitution-making project relating to fundamental rights and an interpretive agenda depending on constitutional sources extrinsic to the EU (or its treaty-based predecessors). Indeed, what the ECJ imposed on itself (p. 10) in Nold in relation to its interpretation of EU law, was both to refer to the national constitutions of the EU member states and to distill what was common to all of the latter.

In order for constitution-makers and interpreters to make cogent and optimal use of foreign constitutional materials that they either must, or wish to, consider, it is necessary for the latter to gain familiarity with them and to become able to gauge what usefulness any particular foreign referent may have in a given concrete decision-making instance. This is likely to require both an understanding of how a foreign constitutional norm figures in its own institutional setting and how it compares to seemingly similar norms in one's own and other pertinent constitutional systems. Constitution-makers and judges do make use of institutional models, structures, processes, arguments, and doctrines coming from beyond their own jurisdiction, and they need sufficient familiarity with those materials to justify such use to themselves and to the audiences to which they must remain responsive. Moreover, judges can sharpen their relative knowledge and appreciation of foreign materials through dialogues with constitutional judges from various countries,48 and through reference to relevant examination, analysis, and comparative assessment of the said materials in the works of comparative constitutional law scholars.

The latter scholars approach the relevant material as observers, and they tackle it from either a descriptive or a prescriptive perspective. From a descriptive standpoint, the scholar examines systematically the comparative constitutional work that participants undertake, performing a number of tasks ranging from classification to critical assessment. For example, a scholar may distinguish between areas or subjects in relation to which much comparison occurs and those that give rise to minimal comparison. Or a scholar may be critical of existing comparisons in a particular area, let us say free speech, upon concluding that constitutional judges base comparisons on superficial similarities while ignoring less apparent but much more important differences. Normative or prescriptive scholarly work, on the other hand, concentrates on what the scholar deems desirable or feasible, depending on the latter's empirical, ideological, or discipline-based position. One may be convinced, for instance, that constitutions are deeply anchored in a particular tradition and that use of foreign material is therefore bound to betray the imperative to maintain the uniqueness of every constitutional system. Or, one may be persuaded that fundamental rights are ultimately universal and that countries with less developed constitutional jurisprudence should always seek to benefit from the experiences of their counterparts with far more developed such jurisprudence.

2. Purposes

The key concern in comparative law as it emerged in the civil law tradition in the late nineteenth and early twentieth century was to find the fonds commun législatif. This was the position of Capitant and Lambert in France,49 and it fostered the training of foreign lawyers in the national tradition in the name of comparative law. There is an analogous trend in comparative constitutional law emerging from the works of those who posit its principal goal as distilling what is universal or common in all constitutional systems and traditions. Accordingly, comparative constitutional analysis is sometimes animated by a search for the universal on the basis of what can be empirically observed or of conformity to the ideal (liberal, constitutionalist) arrangement through adaptation of manifold particular settings in varying cultural and historical circumstances. This search for the universal goes back to the early comparative law (p. 11) tradition exemplified by Anselm Feuerbach, the early nineteenth-century German scholar who is credited with founding the discipline of comparative criminal law.50 Also important was the influence of comparative linguistics, pursued by the liberal constitutionalist Wilhelm von Humboldt,51 which was aimed at generating a universal sense of language based on comparative language studies. This focus on universals is especially salient in comparative constitutional law endeavors to compare national solutions in terms of constitutionalism's search for a political ideal of ordered liberty. Moreover, the strong emphasis on the universality of human rights and the use of comparison in human rights adjudication which are intended to find a measure or standard of universally applicable norms point in the same direction. Some argue, for example, that there is a generally accepted virtually universal method of justification when it comes to circumscribing the scope of fundamental rights: that provided by the standard of proportionality,52 though judges and scholars differ in their conceptions of this ubiquitous standard.53 In this context, the study of the constitution of illiberal democracies54 centers on the reasons for departure from the ideal model, and focuses on the extent to which non-liberal constitutional systems can sustain a well-functioning legal order. Significantly, the influence of the constitution on the legal system in liberal democracies goes well beyond formal institutional settings and definition of legal sources: constitutional values become embedded in the various branches of law and even in private relations.55

There is a lack of consensus concerning the proper goals of comparative analysis that is due to broader ideological disagreements about the nature and function of law in general, and of constitutional law in particular. At one end of the spectrum are those who, consistent with the above remarks on universalism, believe that the legal problems that confront all societies are essentially similar and that their solutions are fundamentally universal.56 Specifically, some argue that basic principles of constitutional law are essentially the same throughout the world.57 Accordingly, the principal goals of comparative analysis are to identify and highlight the common or universal principles and to determine how particular constitutional jurisprudences do, or may be made to, conform to those principles.

At the other end of the spectrum, are those who maintain that all legal problems are so tied to a society's particular history and culture that what is relevant in one constitutional context cannot be relevant, or at least similarly relevant, in another. This position is encapsulated in Montesquieu's observation that ‘the political and civil laws of each nation … should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another’.58 If that were indeed the case, then the only legitimate task for comparative analysis would be to explain how each constitutional system conforms to the singular needs, aspirations, and mores of the particular polity for which it has been designed. Consequently, besides fostering a systematic understanding of how law varies according to the particulars of its socio-political environment, the principal goal of comparison—at least as (p. 12) far as participants are concerned—would be a negative one. Because no two polities are likely to share essentially similar circumstances, there ought to be a strong presumption against use or adaptation of constitutional norms originated beyond one's borders.

Between the two positions described above, there are various other ones. Some believe that the problems confronted by different societies are essentially the same,59 but that the solutions are likely to be different, owing to varying circumstances that distinguish one society from the next.60 Hence, the principal benefit of comparative work would stem from its ability to highlight specificities that tend to be taken for granted, and to enhance the knowledge and understanding of one's own system. For yet others, the function of comparative analysis is the development of an even more critical, reflexive analytical capacity.61 Critical theorists have argued that comparative constitutional law has a colonizing and hegemonic edge, as it tends to project the gloss of a dominant constitutional culture, such as that of the United States or Germany, onto constitutional systems operating in former colonies and other developing polities.62 Accordingly, both comparativist practitioners and observers work wittingly or unwittingly towards co-opting constitutional development in the latter settings. Consistent with this, moreover, the proper goal for comparative analysis would be the ‘debunking’ of the hegemonic tendencies spread throughout the discipline. This raises the question of whether the ideological biases attributed by certain critical scholars to comparative constitutional law stand out on their own or whether they are in the end no different than similar biases claimed to be operating in purely domestic fields of public and private law.63

3. Challenges

Some claim that comparative analysis, in general, and comparative constitutional analysis, in particular, confront special challenges that do not figure in purely domestic fields of law. Richard Posner thus asserts that for linguistic reasons alone many foreign legal systems are difficult to access. Added to that, in Posner's view, domestic judges and scholars cannot easily attain a sufficient familiarity with foreign legal systems and with the social, cultural, and institutional systems in which the latter are embedded to warrant any confidence in the accuracy or utility of actual comparisons.64 Furthermore, for those with universalistic tendencies, comparative constitutional law should aim at harmonization and convergence, and search for application of common or functionally equivalent concepts and institutions. Consistent with this, the hope is to achieve common and shared solutions, contributing perhaps to some kind of democratic world order of Kantian world citizens. Writing from a comparative law perspective, Pierre Legrand has cast a particularly stringent criticism on such ambitions:

rules and concepts alone actually tell one very little about a given legal system. … They may provide one with much information about what is apparently happening, but they indicate nothing about the deep structures of legal systems. Specifically, rules and concepts do little to (p. 13) disclose that legal systems are but the surface manifestation of legal cultures and, indeed, of culture tout court. In other words, they limit the observer to a ‘thin description’ and foreclose the possibility of the ‘thick description’ that the analyst ought to regard as desirable.65

For Legrand, habits and traditions (‘mentalité’) play a decisive and divergent role in the interpretation of common rules and concepts. Accordingly, all comparison involves translation, and the current trend to internationalization of constitutional law66 and to stressing analogies and convergences vastly increases the likelihood of ‘getting lost in translation’.

Another kind of challenge stems from instances in which domestic courts place an implausible interpretive gloss on foreign authorities, apparently for strategic purposes. This may occur in the course of constitutional adjudication in relatively new constitutional democracies, when courts seek to shield controversial and contestable decisions through reference to the constitutional jurisprudence of an established and respected constitutional democracy. For example, several decades ago, the Israeli Supreme Court made reference to American free speech doctrine to justify decisions inconsistent with those of US courts in similar cases.67 As presumably strategic citation of precedents and authorities also occurs in purely domestic settings—both by advocates and by judges endeavoring to emphasize the soundness of their decisions—a key question is whether the challenge posed by strategic uses of legal authorities is markedly greater in the comparative context as opposed to that of its purely domestic counterpart. One possible answer is suggested by reference to the claim that citation of foreign authorities should be avoided because it is inevitably selective. That is the reason Justice Scalia reproached the US Supreme Court's majority opinion reference to European jurisprudence in Lawrence v Texas,68 the case in which the Court held as unconstitutional the criminalization of homosexual sex among consenting adults. Justice Scalia complained that citation of European jurisprudence was selective and thus misleading as in other parts of the world, such as jurisdictions in Asia and South America, the criminalization at issue was deemed constitutional. But by citing these latter jurisdictions, Scalia appears to undermine his assertion that selective citation poses a threat. Actually, familiarity with foreign material allows both promotion and neutralization of selective citations. Arguably, the same can be said for strategic citation.

III. Constitutional Borrowing and Transplantation

Constitutional borrowing and transplantation of constitutional norms, structures, doctrines, and institutions is a fact of life regardless of ideological or theoretical objections to these practices. Furthermore, even those who vigorously object to transplantation in one context may find it entirely appropriate in another. For example, in rejecting the relevance of foreign constitutional experience in the context of adjudicating a dispute concerning the limits of the national government's powers under US federalism, Justice Scalia emphasized that ‘comparative analysis [is] inappropriate to the task of interpreting a constitution though it [is,] of course, quite relevant to the task of writing one’.69 Given the proliferation of new constitutions (p. 14) since the end of the Second World War, it would indeed be odd if constitution-makers refrained altogether from looking to foreign constitutions in the course of designing their own. Moreover, as noted, contemporary constitutional adjudicators often consult and cite foreign authorities which inevitably leads to some measure of borrowing or transplantation.

Constitutional ‘transplants’ and influences are thus relevant and important subjects of comparative analysis. However, their evaluation is bound to depend on the particular take one has on the dynamic between similarities and differences across separate constitutional orders. One important variable is how one construes the nexus between constitutional norms and national identity. If the nexus is weak, then transplants may be relatively unproblematic. For example, in advocating implantation of Western-type private property rights and against constitutionalization of social rights in new constitutions for formerly socialist East European polities in transition to market economies, one commentator observes:

It is often said that constitutions, as a form of higher law, must be compatible with the culture and mores of those whom they regulate. In one sense, however, the opposite is true. Constitutional provisions should be designed to work against precisely those aspects of a country's culture and tradition that are likely to produce harm through that country's ordinary political processes. There is a large difference between the risks of harm faced by a nation committed by culture and history to free markets, and the corresponding risks in a nation committed by culture and history to social security and general state protection.70

Some have argued that the link between a country's constitution and its national identity may vary greatly. Thus, Mark Tushnet has contrasted the Indian Constitution, which he characterizes as quite removed from the country's identity, to the US Constitution, which he claims expresses the national character.71 Does this mean that a country like the United States should be less susceptible to constitutional transplants than one like India? Or does it simply suggest that countries are open to different kinds of transplants, depending on how closely their constitution is linked to their national character?

Constitutional influence or transplants can be either positive or negative. As Andrzej Rapaczynski specifies in the context of borrowing from the United States:

By ‘positive influence’ I mean the adoption or transformation of a legal concept, doctrine, or institution modeled in whole or in part on an American original, where those responsible are aware of the American precedent and this awareness plays some part in their decision. An example is the adoption of the American type of federalism in Australia, or the influence of American First Amendment doctrines on the free speech jurisprudence of Israel. … By ‘negative influence,’ I mean a process in which an American model is known, considered, and rejected, or in which an American experience perceived as undesirable is used as an argument for not following the American example. Examples of this kind of influence are provided by the Indian decision not to include a due process clause in the Indian constitution, or the portrayal of judicial review as a reactionary American institution in preventing its establishment in France in the first half of the twentieth century. … 72

In any case, influences and transplants tend to reflect transformation rather than mere copying. For example, the Indian rejection of a due process clause stemmed from a considera (p. 15) tion of the US experience in enshrining substantive property norms in the early twentieth century.73 Although this interpretation of the Due Process Clause was repudiated in the United States in the 1930s,74 the Indian framers, acting in the late 1940s, considered the US experience and specifically opted to exclude property due process rights from their new constitution to ensure against repeating the US Lochner experience.75

Perhaps the most daunting task confronting the comparativist is that of properly evaluating similarities and differences. Initial appearances may not prove accurate.76 In part, as critical theorists have warned, comparativists may overestimate similarities for ideological reasons. Günther Frankenberg has criticized mainstream comparativists as ‘Anglo-Eurocentric’ paternalists prone to imposing Western hegemonic approaches on the subject and has characterized comparative law as ‘a postmodern form of conquest executed through legal transplants and harmonization strategies’.77 On the other hand, the comparativist may overemphasize differences and thus fail to focus on more relevant similarities. And the latter failure may either be due to a failure of interpretation because of an insufficient grasp of a foreign constitutional culture or to an ideological bias. For example, reliance on US exceptionalism78 to refuse to adhere to nearly complete worldwide condemnation of use of the death penalty as punishment for murders committed by juveniles as dissenting justices in Roper v Simmons79 did, is arguably proof of ideological blindness to a worldwide moral consensus.

Once grafted onto a different constitutional system, transplants can grow, evolve, or atrophy. Growth and evolution are customary within domestic constitutional systems and it is therefore unsurprising that an imported constitutional unit or complex should do likewise while adapting to the new soil into which it has been implanted. Atrophy, in contrast, may stem from a transplant being a mistake or mainly strategic with the importing polity having designs altogether different from those established in the exporting polity. A striking example of atrophy, that may have originally rested on mistaken identification and often later opportunistically appropriated for strategic purposes, is the nearly verbatim importation of US separation of powers and federalism by some Latin American countries. Strikingly, these transplants of a system devoted to a division and decentralization of powers to preserve ‘checks and balances’ have on many occasions been stirred toward virtual presidential dictatorship with full centralization of all powers.80 In sum, constitutional transplants, both positive and negative, play a central role in constitutional design and deployment. A proper handle on the subject is therefore essential for both participants and observers engaging in comparative constitutional analysis.

(p. 16) IV. Methodology

As the question of methodology is comprehensively and systematically addressed in this Handbook—Chapter 2 by Vicki Jackson is entirely devoted to the subject, and many others touch upon it in many different ways—our purpose here is quite limited. Indeed, there would be no need to address this subject here except for two specific reasons: methodological issues are both central and particularly controversial in comparative constitutional law; and, our organization of this Handbook, which will be explained in Section V below, makes proof at least implicitly of certain methodological assumptions and commitments which fit within an overall framework. Consistent with this, we will discuss very generally what is distinct about methodology in comparative constitutional law and provide some specific comments on various positions on methodology within the field that we hope will shed light on the contents and organization of the present volume.

There are factual and normative issues regarding methodology and though the two are conceptually distinct, they are often linked in practice. For example, if one is of the view that ‘constitutional essentials’81 ought to be the same across all constitutional systems, then one may be naturally inclined to treat apparent similarities and differences among various constitutional jurisprudences in ways that depart significantly from similar inquiries launched from the perspective that each constitution is exclusively sui generis and that it can only be understood in a purely contextual manner. With this in mind, it becomes apparent that a large number of methodological issues confronting comparative constitutional law are no different than those that confront domestic constitutional law. For instance, in the United States there is an ongoing controversy between originalists—those who believe that the Constitution should be interpreted consistently with the intent of, or the meaning it had for, the framers82—and those who maintain that the Constitution should be interpreted in terms of the needs of each successive generation within the democratic polity.83 Originalists, therefore, will be more prone to concentrate on historical analysis and will therefore be confronted by the methodological issues associated with the latter. Non-originalists, in contrast, will be preoccupied with how best the Constitution can be adapted to fit the needs of the current generation, and the methodological hurdles they will face will therefore be more akin to those encountered in political science or sociology rather than to those found in history. In short, as these two examples illustrate, there is an extent to which methodological divergences within comparative constitutional law seem no different in kind than those present within domestic constitutional law.

On the other hand, the key methodological differences between the two aforementioned fields center on comparison itself. Is comparison feasible, cogent, or useful? What are its dangers or pitfalls? What special skills does it require? Moreover, methodological issues relating directly to comparison seem likely to be compounded when added to them are issues common to comparative and non-comparative analysis. For example, whatever methodological issues may be triggered by comparing constitutional interpretation in the United States and Germany, would they not have to be supplemented by those raised by the split between originalists and non-originalists alluded to above?

Comparison consists in sorting out and accounting for similarities and differences among units that figure as objects of comparison. What ought to count as a relevant similarity or (p. 17) difference and the import of such similarity or difference are at the root of the most vexing methodological issues. There are two extreme positions concerning similarities and differences which make comparison trivial or superfluous. At one end of the spectrum is the view that there are no relevant similarities among constitutions and constitutional systems: both are exhaustively and inescapably context-dependent and no two contexts are meaningfully alike. In that case, comparison may still be worthwhile for purposes of adding to the recording of diversity among human institutions and practices, but would seem completely incapable of contributing anything of value to legal practitioners or scholars. At the other end of the spectrum, in contrast, is the view that in spite of all apparent differences, all constitutions are or ought to be similar. They all confront the same problems and offer, or clearly should offer, the same solutions. Consistent with this, comparison would be purely nominal and bereft of any functional role. Debates within comparative constitutional law would be substantively equivalent to those within domestic constitutional law. For example, there would be no relevant difference between debating whether the constitutional jurisprudence of country A strikes a better balance than that of country B between free speech and protection against terrorism and a similar debate among judges on the constitutional court of country C who disagree among themselves along the same lines.

In between these two extremes, however, comparison seems bound to be meaningful and the framing of relevant similarities and differences as well the determination of the latter's import methodologically contestable. Much of the debate focuses on striking a proper balance between identity and difference. Thus, Ruti Teitel argues that comparative constitutional law functionalists tend to overemphasize identity at the expense of difference;84 that critical legal studies scholars do the opposite;85 and that a proper balance is most likely to be struck through a dialogical process involving judges and scholars.86 It may well be that critical scholars fear that exaggeration of similarities can serve hegemonic purposes as Frankenberg claimed in the passage cited earlier.87 And it may make it easier for functionalists if similarities were to abound.

Upon further reflection, however, neither of these two positions depends on overemphasis in order to remain coherent. A sophisticated functionalist need not gloss over difference in order fruitfully to compare constitutions in terms of functions. Indeed, constitutions can serve a range of functions and these can make use of, or relate to, different configurations of the interplay between identity and difference depending on the circumstances. It may be, for instance, that all constitutions need to afford some bundle of fundamental rights protection in order for the overall scheme that they set to remain in good working order. It may also be that in one constitutional setting greater emphasis on individual rights would be functionally optimal, whereas in another greater promotion of group rights would be. A good functionalist comparativist would have to identify the relevant similarities and differences and analogies and disanalogies, assess their functional import, and do so in terms of the distinct respective overall constitutional schemes involved. Similarly, a thorough critical theorist may be led to conclude that overemphasis of difference may be as effective a tool as overplay of similarities for purposes of invoking constitutional protections better to screen domination and hegemonic designs. The debate on ‘Asian values’ in the context of international human rights provides an apt illustration here.88 The (p. 18) claim made by proponents of Asian values was that the spreading of international human rights was a political attempt by Western powers to impose their world-view and hegemonic designs worldwide thus trampling on traditional Asian culture and values. However, since the proponents of these claims were closely associated with authoritarian regimes, one could plausibly claim that invocation of difference in this context was designed to evoke the pursuit of liberty and self-determination while in fact boosting a regime bent on the exact opposite.

There are, of course, many other conflicts that arise in comparing constitutions, such as the one that apparently sets function against identity. To the extent that constitutions are expressions of national identity, a mere functional approach to comparison would be misleading. But so would be an exclusively identitarian account. As Vicki Jackson suggests, it may be optimal to combine a functional and identity-based approach.89 Be that as it may, whereas there may be room for reasonable disagreement concerning where to draw the line between functional and identitarian concerns, it seems plain that a sound methodology would require some integration of both.

Finally, it is also important to stress that, even assuming consensus on the function versus identity divide, not all comparisons are likely to be the same or to have identical purposes or uses. One may, for instance, assume that euthanasia raises similar kinds of constitutional issues across most Western democracies, but that federalism inevitably varies significantly from one setting to the next. Thus, it may be that comparative work on euthanasia in Canada, Germany, Switzerland, and the United States can safely assume that sufficiently similar conditions in terms of medical science, societal values, and relevant constitutional jurisprudence prevail, so as to make direct comparison and even borrowing easily justifiable.90 In contrast, no similar comparison seems warranted concerning the respective federalisms adopted in those countries. The purposes and institutional arrangements of these structurally different federalisms differ sufficiently so as to raise substantial questions regarding direct comparison.91 But even if direct comparison is unwarranted in the context of adjudication, it may still be useful in terms of constitutional design or of a political science assessment of the relation between various institutional arrangements and democracy. More generally, there seems to be a wide range of potentially useful and productive opportunities for comparison at varying levels of abstraction. These start at the concrete doctrinal level as envisioned by Armin von Bogdandy who refers to the construction of a European (Union) public law doctrine built upon common elements emerging from the respective national constitutional jurisprudences of the EU member states.92 These opportunities extend, moreover, all the way to abstract theoretical inquiries concerning constitutional justice and its relation to delimitation of an optimal interplay between identity and difference.93

(p. 19) V. Structure and Organization of the Handbook

Consistent with the preceding observations regarding methodology, the structure and organization of this Handbook is informed by the ongoing dynamic generated through interaction and conflict among the following intersecting and overlapping sets of polarities: similarity and divergence; function and identity; (level of) abstraction and context; theory and application; and (constitutional) law, politics, and (philosophical) criteria of justice and legitimacy. As we have seen, there is widespread disagreement regarding the handling and implications of each of these sets of polarities, and undoubtedly the actual and plausible interactions among the latter are likely to be subject to even greater contestation. We proceed on the assumption that the polarities in question do matter and that interaction among them does, can, and in some cases should, occur. Overall, this dynamic provides some fixed points of reference (eg all comparison encounters axes of similarity and axes of difference) and many overlapping arenas of contestation (eg at what level of abstraction is a comparison of different federalisms warranted?). We seek to account for the latter dynamic as much as possible both within each part and among all parts of the Handbook. Moreover, we aim to link this complex and multifaceted dynamic that encompasses a multiplicity of competing views on comparison to the established pillars of constitutional law: structure, process, rights, and the rule of law. This design, we hope, will best highlight the potential for dialogue emanating from the various contributions made from within a wide array of perspectives originating in several scholarly disciplines and associated with the principal positions within the comparative constitutional law wars.

Specifically, the Handbook is divided into nine parts. Part I, entitled ‘History, Methodology, and Typology’, provides a systematic as well as a historical and contextual account of the principal subjects linked to methodology and to typology. The focus is on the content and context of comparison. The focus on methodology proper is apportioned between analysis in two actual constitutional regimes (Chapter 1) and a systematic account offering a critical appraisal of the principal contending positions (Chapter 2). Typologies are considered from a systemic viewpoint (Chapter 3) and are placed in context through a history of ideas of constitutional designs and conceptions of constitutionalism (Chapter 4). Moreover, as much comparative constitutional analysis relies predominantly on reference to the constitutional systems of Western democracies, this raises the question of whether much that is taken as universally applicable in terms of methodology or typology holds once one moves away from the customary frame of reference. To address this question, examinations of constitutionalism in illiberal polities (Chapter 5) as well as in polities with pervasive poverty (Chapter 6) are provided. Finally, constitutionalists, whether comparative or not, frequently tend to treat constitutional law as all pervasive. But that is most often not the case, and in some settings it is even less so than others. To put all this in perspective, one needs to take a close look into the place of constitutional law in the legal system (Chapter 7).

At once unifying and divisive, some key concepts pervade the constitutional domain. These key concepts are ubiquitous and inherently contested and this becomes magnified and intensified when constitutions are approached comparatively. Part II, ‘Ideas’, tackles the most important among these key concepts: constitutionalism (Chapter 8); constitution (Chapter 9); rule of law (Chapter 10); democracy (Chapter 11); the state (Chapter 12); rights and liberties as concepts (Chapter 13); the public/private divide (Chapter 14); state neutrality (Chapter 15); the constitution and justice (Chapter 16); sovereignty (Chapter 17); dignity and autonomy (Chapter 18); and gendered visions of the constitution (Chapter 19). No cogent account of constitutional law, let alone comparative constitutional law, can dispense with these concepts. They at once erect a conceptual framework, anchor a common vocabulary and grammar, and (p. 20) break into a multitude of warring conceptions. They are all meant to provide a common currency, but each can yield more than one currency that may qualify as a candidate to become the common one. Consistent with this, each of these concepts is tackled by an author who, while referring to the plurality of relevant interpretations at stake, carves out his or her own distinct conception of the concept under study.

Part III, ‘Process’, zeroes in on the dynamics inherent in, and projected by, the constitution. It deals both with the constitution as process and with the processes launched or molded by the constitution. Constitution-making most clearly casts the constitution as process (Chapter 20), but so do, at least in part, emergencies (Chapter 21) and secession (Chapter 23) in as much as they relate to the continuation, suspension, or cessation of the constitution as well as being susceptible of figuring as processes provided for, and regulated by, the constitution. There are also processes grounded in, and shaped by, the constitution. Chief among these are: war powers (Chapter 22); referenda (Chapter 24); and elections (Chapter 25).

Process goes hand in hand with structure, but we have named Part IV ‘Architecture’ to convey that constitutions need and endeavor to construct more than mere structures. Architecture requires conception, planning, designing, and giving expression to a particular objective in terms of designated functions and in conformity with a distinct aesthetic design. The architect needs to integrate structure, function, and aesthetics in a proportionate and harmonious manner. Reliance on the concept of architecture, moreover, facilitates comparison as one can focus on how different architectural designs accommodate similar functional needs and on how architecture can be used to accommodate different functions and uses. Focus on architecture also allows for fruitful inquiry into the relation of the part and the whole and on the structural conjunctions between parts and between the latter and the whole. Included are analyses of: horizontal structuring (Chapter 26); vertical structuring (Chapter 27); internal ordering of the unitary state (Chapter 28); presidentialism (Chapter 29); parliamentarism (Chapter 30); and the regulatory state (Chapter 31).

Constitutions are expressions of the visions and goals of the polity to which they are attached. They project the identity of the latter while at the same time acquiring and developing an identity of their own. Constitutions at once interpret (the needs and aspirations of those they are designed for) and must be interpreted (both in whole and in part). Constitutions are endowed with meaning and at the same time are meaning-endowing. They also acquire texture as they accumulate the imprints of historical deployment in a particular socio-political setting. Part V, ‘Meanings/Textures’, deals with these subjects which at once greatly benefit from, and afford sharper insights into, comparative analysis. Indeed, concentration on meanings and textures highlights the relationship between poles of identity and poles of difference, both within a constitutional culture and across several different ones. Meanings and textures are front and center in interpreting the constitution (Chapter 32). Moreover, a particularly propitious comparative window into meanings and textures emerges in the context of proportionality. As already mentioned, some have claimed that proportionality has become the common currency throughout the entire constitutional domain. Accordingly, proportionality should allow for a systematic staking out of all that which is essentially similar across constitutional systems as well and at the same time providing the necessary tools to determine the exact thrust and import of every difference that ought to count. Yet, there are sharp disagreements as to the meaning and scope of proportionality which have prompted us to include two contending views on the subject. Proportionality I (Chapter 33), presents a rather restrictive conception of the proper role of the proportionality standard, whereas Proportionality II (Chapter 34) adopts a much more expansive view of it. As constitutions produce meaning, this raises the question of whether each constitution can develop a distinct identity of its own which (p. 21) differs from that of other constitutions and from the other relevant extra-constitutional identities, such as national identity, within the polity within which the constitution in question is embedded (Chapter 35). Finally, constitutions can and do incorporate values and principles that yield determinate meanings and textures (Chapter 36).

Constitutional order depends on the presence and proper functioning of institutions that attend to maintenance of the requisite integrity of structures, processes, to vindication of fundamental rights, and to the safeguard of the rule of law. Part VI, ‘Institutions’, concentrates on some of the most important institutions and institutional issues relating to maintenance of an optimal constitutional order: insuring constitutional efficacy (Chapter 37); constitutional courts (Chapter 38); judicial independence (Chapter 39); the judiciary (Chapter 40); and political parties (Chapter 41).

The next two parts of the Handbook are devoted to fundamental rights under the constitution. The division into two parts is motivated by the recognition that some rights, such as liberty or equality, are better conceived as distinct self-enclosed units, whereas others, such as abortion, as involving an overlap among a number of distinct rights, including liberty, equality, and privacy. From a comparative standpoint, rights appear to occupy a privileged position as both similarities and differences, convergences and divergences, seem immediately apparent, and explanations for these often strike one as being readily available (though further inquiry may at times prove initial impressions misleading). It thus seems evident that all religiously pluralistic polities need deployment of a constitutional right to freedom of religion, and yet a canvassing of such polities reveals that the right in question comes in many significant variations ranging from strict secularism to the recognition of an official state religion. More generally, there seems to be a widespread need for a bundle of the same rights across constitutional cultures and a different treatment of these rights depending on the particulars of each of the constitutional cultures involved. Part VII, ‘Rights’, addresses: freedom of expression (Chapter 42); freedom of religion (Chapter 43); due process (Chapter 44); associative rights (Chapter 45); privacy (Chapter 46); equality (Chapter 47); citizenship (Chapter 48); social rights (Chapter 49); and rights in the economic life (Chapter 50). Part VIII, ‘Overlapping Rights’, in turn addresses: abortion (Chapter 51); rights based on sexual orientation (Chapter 52); group rights (Chapter 53); affirmative action (Chapter 54); and, rights arising out of bioethics (Chapter 55).

Part IX, ‘Trends’, culls together relatively new constitutional movements and tendencies and others that are nascent but seem poised in all likelihood to assume a greater role in the future. What unites all these trends is that they are jointly and severally altering and expanding the boundaries of constitutionalism and of constitutional regimes. Also, these trends suggest greater interrelation and interpenetration among different constitutional regimes operating along both vertical and horizontal axes. Whereas on the surface these trends may seem to pull towards greater common identity, upon further consideration they seem more likely to reorient the dynamic between identities and differences than to foster uniformity across ever vaster expanses. The specific subjects covered are: the internationalization of constitutional law (Chapter 56); the European Constitution (Chapter 57); the constitutionalization of public international law (Chapter 58); the jurisprudence of the European Court of Human Rights and its effects on the constitutional systems of Europe (Chapter 59); militant democracy (Chapter 60); constitutional transformation and transitional justice (Chapter 61); Islam and constitutional ordering (Chapter 62); constitutional borrowings and transplants (Chapter 63); and the use of comparative constitutional law in constitutional adjudication (Chapter 64). (p. 22)

Notes:

(1) See Rosenfeld, Chapter 1B.   

(2) See Halmai, Chapter 64.

(3) See Spielmann, Chapter 59.

(4) See eg Thomas Hobbes, Leviathan (1651); John Locke, Two Treatises of Government (1689); on the early natural law tradition, see Hugo Grotius, De iure belli ac pacis (1625).

(5) See eg, Alexander Hamilton, John Jay, and James Madison, ‘The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation’ , The Federalist Papers, no 57 (1788).

(6) See Louis-Alexandre La Rochefoucauld d’Enville, Constitutions des treize États-Unis de l’Amérique (1783); Nicolas de Condorcet, De l’influence de la révolution d’Amérique sur l’Europe (1786).

(7) See François Mignet, History of the French Revolution 1789–1814 (1824), ch 3.

(8) See Russell H. Fitzgibbon, ‘The Process of Constitution Making in Latin America’ (1960) 3 Comparative Studies in Society and History 1.

(9) See John Stuart Mill, Considerations on Representative Government (1861).

(10) See Henri-Benjamin Constant de Rebecque, The Liberty of Ancients Compared with that of Moderns (1816); Alexis de Tocqueville, Democracy in America, vol I (Henry Reeve trans, 1835); József Eötvös, The Influence of the Nineteenth Century's Dominant Ideas on the State (1851, 1854).

(11) See further Grimm, Chapter 4.

(12) On comparisons with English self-government see Freiherr vom Stein, ‘Nassauer Denkschrift’ (Über die zweckmäßige Bildung der obersten und der Provinzial-, Finanz- und Polizei-Behörden in der preußischen Monarchie) (1807); Heinrich Rudolf Hermann Friedrich von Gneist, Communalverfassung und Verwaltungsgerichte in England (1871). See further Caroula Argyriadis-Kervegan, ‘L’Administration locale entre nature et état dans la pensée allemande du XIXe siècle’ (2006) 23 Revue française d’histoire des idées politiques 83.

(13) A.V. Dicey, Law of the Constitution (1885); see Krygier, Chapter 10.

(14) See Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (Ann M. Cohler et al ed and trans, 1989).

(15) See von Bogdandy, Chapter 1A.

(17) See Frederic Austin Ogg, The Governments of Europe (1913), VIII.

(18) Georg Jellinek, The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History (1895).

(19) Adhémar Esmein, Éléments de droit constitutionnel français et comparé (1899). Esmein was also the founder of Nouvelle revue historique du droit français et étranger.

(20) See Léon Duguit, Law in the Modern State (Frida Laski and Harold Laksi trans, 1901).

(21) Ibid 69–72.

(22) See eg Édouard Lambert, Le Gouvernement des juges et la lutte contre la législation sociale aux États-Unis. L’expérience américaine du contrôle judiciaire de la constitutionnalité des lois (1921).

(23) See in particular the constitutional and public law reforms in Japan. Harald Hohmann, ‘Modern Japanese Law: Legal History and Concept of Law, Public Law and Economic Law of Japan’ (1996) 44 American Journal of Comparative Law 151.

(24) Boris Mirkine-Guetzevitch, Les Constitutions de l’Europe nouvelle (1928 with ten additional editions).

(25) Ogg (n 17); Herman Finer, in The Theory and Practice of Modern Government (1932) continued the tradition of comparing governments while adding a theoretical-constitutionalist dimension. This was a lasting tradition: the last reprint of Finer's 1949 revised edition was published in 1970.

(26) Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, I’ (1937) 31 American Political Science Review 417.

(27) Franz Leopold Neumann, Behemoth: The Structure and Practice of National Socialism, 1933–1944 (1944).

(28) Ernst Fraenkel, The Dual State (1941).

(29) Published in 1948.

(30) Günther Doeker-Mach, ‘Comparative Constitutional Law: Reflections on the Past and Concerns about the Future’ in Günther Doeker-Mach and Klaus A. Ziegert (eds), Law, Legal Culture and Politics in the Twenty First Century (2004), 337.

(31) Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America (1941); see also Carl J. Friedrich, Constitutional Government and Politics (1937).

(32) Though closer to political philosophy, Friedrich von Hayek 's The Constitution of Liberty (1960) fits into this tradition.

(33) Friedrich, Constitutional Government and Democracy (n 31), 505.

(34) For an early path-breaking survey see Mauro Cappelletti, Judicial Review in the Contemporary World (1971). See further Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).

(35) See Bernhard Schwartz, American Constitutional Law (1955), X. The book is full of comparative references, as it was written for an English audience.

(36) See Mark Tushnet, ‘Comparative Constitutional Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2006), 1228.

(37) Thomas M. Franck, Comparative Constitutional Process. Cases and Materials. Fundamental Rights in the Common Law Nations (1968).

(38) Walter Francis Murphy and Joseph Tannenhaus, Comparative Constitutional Law: Texts and Commentaries (1977) (strong emphasis on judicial policy making); Mauro Cappelletti and William Cohen, Comparative Constitutional Law: Cases and Materials (1979).

(39) In Italy, Giuseppe De Vergottini had already published his Diritto costituzionale comparato in 1981 (7th edn, 2010).

(40) Cours constitutionnelles européennes et droits fondamentaux (1982).

(41) Georg Jellinek, Allgemeine Staatsrechtslehre (1905); for the reliance on comparataive material see eg Georg Jellinek, Das Recht des modernen Staates (1900).

(42) See eg Bernd Wieser, Vergleichendes Verfassungsrecht (2005).

(43) Peter Häberle, Rechtsvergleichung im Kraftfeld des Verfassungsstaates: Methoden und Inhalte, Kleinstaaten und Entwicklungsländer (1992).

(44) See Sujit Choudhry, ‘Globalization in Search of Justification: Towards a Theory of Comparative Constitutional Interpretation’ (1999) 74 Indiana Law Journal 819, 821–2.

(45) See Margaret A. Burnham, ‘Cultivating a Seedling Charter: South Africa's Court Grows its Constitution’ (1997) 3 Michigan Journal of Race and Law 29, 44 (concerning the use by the South African Constitutional Court of comparative jurisprudence as a means for South Africa to claim ‘its place among the world's constitutional democracies’); and State v Mhlugu, 1995 (3) SALR 867, 917 (CC) (according to Justice Sachs, South Africa's constitutional jurisprudence must take its place ‘as part of a global development of constitutionalism and human rights’).

(46) J. Nold KG v EC Commission (Case 4/73): [1974] ECR 491 at 507, [1974] 2 CMLR 338 at 354.

(48) Anne-Marie Slaughter, A New World Order (2004).

(49) See eg Édouard Lambert, Étude de droit commun législatif, la fonction du droit civil comparé (1903).

(50) See Gustav Radbruch, ‘Anselme Feuerbach, precurseur du droit comparé’ , Recueil Lambert, vol I (1938).

(51) See Tilman Borsche, Sprachanansichten. Der Begriff der menschlichen Rede in der Sprachphilosophie Wilhelm von Humboldts (1981).

(52) See eg David Beatty, The Ultimate Rule of Law (2004).

(53) Compare the respective chapters in this volume by Bernhard Schlink (Chapter 33) and Aharon Barak (Chapter 34).

(54) See Thio, Chapter 5.

(55) On horizontal effects see Gardbaum, Chapter 7.

(56) See eg Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (Tony Weir trans, 2nd edn, 1987), 36.

(57) See David M. Beatty, Constitutional Law in Theory and Practice (1995).

(58) See Montesquieu (n 14), 8.

(59) See eg Mary Ann Glendon, ‘Rights in Twentieth Century Constitutions’ (1992) 59 University of Chicago Law Review 519, 535.

(60) See Mary Ann Glendon, Comparative Legal Traditions (2nd edn, 1994), 10.

(61) See Günther Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26 Harvard International Law Journal 411 and Peer Zumbansen, ‘Comparative Law's Coming of Age? Twenty Years after Critical Comparisons’ (2005) 6 German Law Journal 1073.

(62) See eg Gunther Frankenberg, ‘Stranger than Paradise: Identity and Politics in Comparative Law’ (1997) Utah Law Review 259, 262–3.

(63) See eg Roberto Unger, The Critical Legal Studies Movement (1983).

(64) See Richard A. Posner, ‘Foreword: A Political Court’ (2005) 119 Harvard Law Review 31, 84–9.

(65) Pierre Legrand, ‘European Legal Systems Are Not Converging’ (1996) 45 International and Comparative Law Quarterly 52, 56.

(66) See Michel Rosenfeld, The Identity of the Constitutional Subject (2010), 246–7.

(67) See Gary Jacobsohn, Apple of Gold (1993), ch 6.

(68) 539 US 558 (2003).

(69) See Printz v United States 521 US 898, 921 n11 (1997).

(70) Cass R. Sunstein, ‘On Property and Constitutionalism’ in Michel Rosenfeld (ed), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives (1994), 383, 398.

(71) See Mark V. Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 Yale Law Journal 1225, 1270–1.

(72) Andrzej Rapaczynski, ‘Bibliographical Essay: The Influence of US Constitutionalism Abroad’ in Louis Henkin and Albert J. Rosenthal (eds), Constitutionalism and Rights: The Influence of the US Constitution Abroad (1990) 94, 96–7.

(73) See Lochner v New York 198 US 45 (1905) (New York law limiting number of hours of work of bakery employees held to violate due process property rights of employers and employees).

(74) See Nebbia v New York 291 US 502 (1934) and West Coast Hotel Co v Parrish 300 US 379 (1937).

(75) See Soli J. Sorabjee, ‘Equality in the United States and India’ in Louis Henkin and Albert J. Rosenthal (eds), Constitutionalism and Rights: The Influence of the United States Constitution Abroad (1990), 94, 96–7.

(76) See Michel Rosenfeld, ‘Justices at Work: An Introduction’ (1997) 18 Cardozo Law Review 1609, 1609–10.

(77) Günther Frankenberg, ‘Stranger than Paradise: Identity and Politics in Comparative Law’ (1997) 1997 Utah Law Review 259, 262–3.

(78) See Rosenfeld, Chapter 1B.

(79) 543 US 551 (2005) (holding death penalty decreed for crime committed by juveniles to be unconstitutional).

(80) See Keith S. Rosenn, ‘Federalism in the Americas in Comparative Perspective’ (1994) 26 University of Miami Inter-American Law Review 1.

(81) We borrow this formulation from Rawls. See John Rawls, A Theory of Justice (1971), 354.

(82) See Norman Dorsen et al, Comparative Constitutionalism: Cases and Materials (2nd edn, 2010), 219–24 (summarizing the debate over US originalism).

(83) See eg Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005).

(84) See Ruti Teitel, ‘Comparative Constitutional Law in a Global Age’ (2004) 117 Harvard Law Review 2570, 2576, 2581.

(85) Ibid 2582.

(86) Ibid 2595–6.

(87) See n 77.

(88) See eg Michael C. Davis, Constitutionalism and Political Culture: The Debate over Human Rights and Asian Values (1998) 11 Harvard Human Rights Journal 109.

(89) See Jackson, Chapter 2.

(90) See eg Washington v Glucksberg 521 US 702 (1997) (in deciding that there was no US constitutional right to assisted suicide, the Supreme Court referred to several Western jurisdictions that had already judicially dealt with the issue).

(91) See eg Printz v United States 521 US 898 (1997) (Justice Scalia and Justice Breyer disagreeing on the relevance of delegation of implementation of federal regulation to local federated state authorities under German federalism for purposes of determining the constitutionality of similar delegation under US federalism).

(92) See von Bogdandy, Chapter 1B.

(93) See Gargarella, Chapter 16; Rosenfeld, Chapter 35; Jacobsohn, Chapter 36.