Comparative Constitutionalism Research Paper

Comparative constitutionalism is now widely practiced by both constitution-makers and constitutional interpreters. Comparative constitutionalism became prominent in the late twentieth century, expanding exponentially in practice with the wave of constitution-making that accompanied the end of the Cold War. While comparative constitutionalist practices are initially applied in the process of constitution making, in which participants seek to apply models and experiences from other contexts, it is perpetuated in the debates over the meaning of each new constitutional provision from the moment of its adoption. This practice is institutionalized in the jurisprudence of many constitutional and supreme courts who through their decisions effectively engage in a trans-national comparative constitutional discourse on constitutional meanings and functions.

Academically, a single definition of comparative constitutionalism is even more difficult to formulate. In philosophy, political science, and law, comparative constitutionalism is used both normatively to evaluate constitutional provisions, and empirically to describe, contrast, and reflect upon the consequences of the different rights and institutional provisions of constitutions around the globe. As a normative exercise, the survey and comparison of constitutions remains close to the original Aristotelean method of comparing different constitutional provisions and institutions in order to define a better form of government. This approach has been supplemented with historical accounts which explore the development of constitutionalism through time (Pennington 1993) and across national borders (van Caenegem 1995) A normative emphasis is also prevalent in a range of studies that focus on some of the foundational questions underlying the adoption and implementation of constitutions: the relationship between constitutionalism and democracy (Elster and Slagstad 1988; Habermas 1996); the origin of the notion of fundamental rights and the role of civil society (Mamdani 1991); and even the idea of a diversity of forms of constitutionalism that might be achieved through demands for cultural recognition in a post-colonial age (Tully 1995). While increasingly of an interdisciplinary nature and central to the idea of constitutionalism, these studies tend either to focus on the conceptual and theoretical issues or to adopt a country by country approach rather than a comparative perspective (Gordon 1999, Pennock and Chapman 1979).

However, with the emergence of globalization as both an empirical phenomena and as an object of study, the debate on constitutionalism has taken a comparative turn (Singh 1989). Comparative constitutionalism in this latter sense has two distinct foci: on the one hand there is a focus on comparing the different institutions that are employed to secure democratic forms of government (Sartori 1994), or their role in shaping particular social issues such as identity and diversity (Rosenfeld 1994, Habermas 1998). On the other hand there is an emerging focus on constitutional borrowing, adaptation, and hybridization (Badi 2000, Klug 2000).

The dispersal of sovereignty, which is inherent in the process of globalization, provides further difficulties for the definition of constitutionalism, as may be witnessed in the debate over citizenship and democracy in the European Union, or in the ideas of shared sovereignty which have been introduced into the debate over the future of Jerusalem. The post-twentieth century emphasis on the negotiated settlement of disputes over governance and power, whether at an international or local level, provides fertile ground for debating constitutional alternatives. Here, comparative constitutionalism becomes a pragmatic alternative to continuing conflict.

2. The Global Context

Alarm over the Americanization of the world became a central theme for many critics of globalism in the 1990s. At the same time, many lawyers participated in and celebrated the new emphasis on the ‘rule of law,’ presuming the global adoption of law and legal processes as a precondition for successful transitions from authoritarian regimes and command economies into a new world order. The adoption of bills of rights and the empowerment of courts, which characterized many of these political transitions, led many to believe these developments indeed reflected the embrace of American values in the post-Cold War era. Bruce Ackerman heralded the emergence of a ‘world con-stitutionalism,’ arguing that the ‘enlightenment faith in written constitutions is sweeping the world’ (Ackerman 1997). Another prominent United States constitutional scholar, Cass Sunstein, argued that the ‘right kind of constitution could play an important role in fueling economic development and democratic reform; indeed, under current conditions, it may be indispensable to them’ (Sunstein 1993).

With the widespread adoption of constitutional forms genetically tied to the innovations of the American revolution, it is not surprising that both advocates and detractors of the American experience assume the United States to be the hegemonic model. However, American lawyers and scholars who participated in a billion-dollar program in the 1990s to promote the rule of law around the world found themselves in competition with alternative constitutional models. Although the bulk of activity in this ‘rule of law’ movement focused on judicial and legislative reform designed to promote market economies, it is important to recognize that a central product of this dual process of political transformation and rule of law advocacy was fundamental constitutional reform in half the world—in approximately 104 of the 188 members of the United Nations. Of these, a staggering 78 percent, or approximately 81 countries, adopted completely new constitutions.

Given a common belief in the United States Constitution as a ‘source of inspiration and ideas … studied and appraised by scholars, invoked by publicists, adopted or adapted by revolutionaries, nation builders and statesmen’ (Henkin 1989), many of those who joined the multitude of legal expeditions to assist in constitution making in Eastern Europe, Africa, and elsewhere were surprised to find themselves con-fronted with alternative constitutional models. As exporters, advocates of the American model found that instead of enjoying an unassailable status, they faced open competition from advocates of the German, Canadian, Indian, or other constitutional experiences. Given that these alternative constitutional experiences are to a large extent themselves based on the American model of constitutionalism, it seems counterintuitive to regard the dominant model, the American experience, simply as one of a number of alternative models. Yet this is the case, and may be explained by the emergence of comparative constitutionalism. Constitution-makers, interpreters, and litigants actively compared their own conditions and experiences with the current and historical experiences of other countries, in order to advocate one or another constitutional solution, whether a particular constitutional institution, the specific form of a constitutional clause, or the meaning of particular constitutional language. These practices became increasingly common through the 1990s as states around the globe engaged in one of the most profound processes of constitutional and political reconstruction ever. It is this context that has framed the new intellectual interest in comparative constitutionalism.

3. Constitutions, Constitutionalism, And The Politics Of Comparison

Comparative constitutionalism has shifted its emphasis from being a philosophical debate over the nature and form of good government to a more legal focus on the application and meaning of particular constitutional structures and rights, as well as on the role of the judiciary in the project of limited government (Sajo 1999). While the question of judicial review, and particularly the debate over the relation-ship between constitutionalism and democracy, dominated much of the academic discourse in the twentieth century, the changing social and political context has brought greater attention to the interaction of constitutional ideas and institutions across different legal systems and national boundaries (Schedler et al. 1999, Hanafin and Williams 1999, Teubner 1997). This new trend is beginning to define a new field of comparative constitutionalism in theory and practice.

Comparative constitutionalism originated in western thought with Aristotle. In the Nicomachean Ethics (Aristotle 1996) he made a case for the comparative study of constitutions, arguing that by studying the ‘constitutions we have collected … we shall perhaps be more likely to see which constitution is best, and how each must be ordered, and what laws and customs it must use’ (Aristotle 1181b, 13–22). Although only the Constitution of Athens (Aristotle 1996) remains from this early venture, the product of this analytical exercise is presented by Aristotle in The Politics (Aristotle 1996) and remains a principle source for the study of comparative government, which still largely aims to construct a normative definition of institutional and political practices that are necessary in order to secure the good life.

The Aristotlean notion of constitutionalism, combining both a distinctive political order and the idea of a political regime in general is, according to Carl Friedrich, the source of the ‘modern idea of a constitution as the organization of a government, its offices, and the relation of the offices’ (Friedrich 1968a). For Friedrich, however, this understanding, which recognizes all forms of government as exhibiting one or other form of constitutionalism, was inadequate, for it incorporated dictatorial forms of governance within the idea of constitutionalism. Instead, Friedrich (1968b), along with McIIwain (1947) and Wormuth (1949), emphasized the relationship between constitutionalism and individual liberty. For them, the essence of constitutionalism is not the organization of power but rather the idea of limited power. From the idea of restraints on power to the separation and division of power, the focus among Anglo-American theorists through the middle decades of the twentieth century was on the guarantee of individual liberty which they took to be the product of various means of limiting state power (Pound 1957).

Writing first in the shadow of Nazi Germany, then in the aftermath of World War II, and during the Cold War, Friedrich shifted the focus away from the comparative perspective inherent in the Aristotlean approach by posing the question: what is the political function of the constitution? From this starting point, Friedrich identified the protection of the individual member of the political community as the primary object of constitutional government, thus redefining constitutionalism as a ‘modern phenomena’ whose central concern is the practice and theory of limited government (Friedrich 1968b). This focus empowered western theorists to reject constitutional forms, particularly the ‘symbolic’ state socialist constitutions that failed to limit state power, as aberrations of the constitutionalist tradition. Thus constitutionalism was once again given a normative form, but at the cost of limiting the concept only to those constitutional arrangements that successfully limited and controlled state power.

The failure of post-colonial constitutions in Africa and other parts of the Third World, despite the inclusion of clauses formally limiting, separating, and controlling state power, produced an alternative, ‘socio-legal’ approach to constitutionalism. Legal academics and political scientists argued that it was important to understand the economic and social context that determined the effective constitution of power in these newly independent states (Ghai 1991). Taken further, this analysis seeks to demonstrate how the underlying colonial and neocolonial conditions of social organization, particularly the dual legal system and lack of land tenure security, restrict the capacity of civil society in Africa (Mamdani 1996, Shivji 1998). Without changes in these conditions, it is argued, the notion of legal rights against the state and restraints on state power are ephemeral. Despite this disillusionment with formal constitutions and constitutionalism, struggles for democracy and interethnic strife in many developing countries has fueled a continual search for understanding the place constitutionalism may play in the reconstruction of post-colonial states. Yash Ghai has sought constitutional solutions to problems of ethnic strife, both in his practice as a constitutional advisor and in his academic work (Ghai 2000). He has also applied this socio-legal perspective to analyzing the role of constitutional formulations produced to define the relationship between the central government in China and a reintegrated Hong Kong (Ghai 1997).

With the protection of the individual as its central goal, and the restraint of political power as its essential feature, the study of constitutionalism lost steam in the Anglo-American world. It split in two distinct directions, one legal, the other political. On the one hand, an interest in judicial review became the central concern of legal constitutionalists. Here the idea of comparative constitutionalism became, and remains so to some extent, equated with comparative constitutional law (Capelletti and Cohen 1979). In this context the comparative approach either focuses on the specific problem of judicial review, engaging in a comparison of the process of judicial review, exercised by courts around the world (Cappeletti 1989), or compares the case law of different jurisdictions in order to explore different means of the constitutional resolution of particular issues from the protection of property rights (Allen 2000) to abortion and hate speech (Jackson and Tushnet 1999). On the other hand, the fiscal crisis of the state and political conservatism in the late 1970s and 1980s led to a direct political attack on the role of the state in society. Despite challenges of cultural imperialism by those advocating an ‘Asian model’ of autocratic paternal-ism, or by those who argued that ‘constitutionalism is largely a cultural phenomena and not simply the product of properly designed institutions and structures of government’ (Franklin and Baun 1995), it was the emphasis upon the need to restrict state power that created an intellectual and political environment in which the constitutional protection of individual rights and the institution of judicial review became the dominant features of a post-Cold War international political culture.

The emphasis on the legal form of constitutionalism, and on judicial review in particular, shifted the focus onto the role of the judiciary, encouraging both a practical emphasis on judicial reform as well as in interest in the global expansion of judicial power (Tate and Vallinder 1995). However, at the same time, the failure and even collapse of governments in Africa and the Asian economic crisis in the 1990s brought a renewed focus on the question of power and the need for effective governance. This focus raised the question of how the constitutional allocation of power should in fact empower the state to achieve a level of social coordination necessary for individual security and freedom.

4. The Problem Of Governance And The Role Of Comparative Constitutionalism

If constitutionalism is, historically, the struggle to regulate political competition, then it is unsurprising to discover that different constitutional options in fact reflect continuing ideological and political alternatives. The politics of constitution making (Elster 1995) is thus festooned with the claims of competing political advocates who project their ideological perspectives and political goals into constitutionalist forms (Klug 2000). While the post-World War II response to the violation of human rights produced a movement that could insist on the recognition and promotion of human rights through both inter-national and domestic fora, the re-emergence of a nineteenth century liberalism, in the guise of a 1980s neoliberalism, had profound implications for the politics of constitution-making in the post-Cold War era. In this context, Friedrich von Hayek’s conception of politics as threatening a liberal order that is simultaneously complex and delicate (Hayek 1960) provided a central argument for those who sought to shrink the state. Although democratic theorists and constitutional scholars had long highlighted the anti-democratic implications of constitutional review, the neoliberal project emphasized the ‘rule of law’— requiring an independent judiciary with powers of judicial review—and demanded a constitutionalization of many other institutions and areas of governance as a means to limit the destabilizing impact of politics.

Despite the gains made by neoliberalism at the end of the Cold War, the politics of constitution making remained eclectic. Although the vast majority of states undergoing reconstruction through processes of constitutional change in this period seemed to accept the liberal paradigm of individual human rights and multiparty democracy, this did not preclude the simultaneous inclusion of a range of alternative constitutional elements, including socioeconomic and cultural rights, which reflect alternative traditions. Significantly, the dominant liberal democratic tradition itself contains different trends, sometimes complementary, some-times contradictory, advanced by different social forces and reflecting a plurality of interests. Of these, the two trends that had the most direct impact on processes of post-Cold War state reconstruction emphasized liberty and equality. While there is a significant overlap in liberalism’s ideological commitment to liberty and equality, emphasis on one or the other provides a range of alternatives within the liberal democratic tradition. These extend from classic nineteenth-century liberalism, with its emphasis on individual freedom and property rights, to the claims of the democratic collectivity inherent in the social democratic liberalism of the post-World War II era. While both aspects of this tradition emphasize electoral democracy and the protection of individual rights, they also contain contradictions with important consequences for the shape and role of the state.

While the struggle for equality, whether aimed at economic or racial inequalities, elicited the power of the state to address entrenched private power, the struggle for individual freedom has eschewed the state, often characterizing governmental power as the very source of oppression. These different responses to the state have obvious consequences for the structure of government, the most dramatic being the emphasis on the need to downsize or limit the role and capacity of the state. Combined with a reaction against the commanding role held by the state in socialist societies and strengthened by the fiscal crisis of the state in western democracies, this tendency significantly influenced the international political culture that framed the post-Cold War process of state reconstruction. By contrast, the classic elements of a social democratic state, including the state’s social welfare orientation and regulatory role in the relationship between capital and labor, including the creation of corporatist institutions which gave organized labor an important voice in social organization, fell into political and ideological disrepute and began to be dismantled.

In this context, comparative constitutionalism pro-vides an opportunity to rethink many of the long-standing assumptions about traditional constitutional forms so as to understand their role in the construction and maintenance of different constitutional orders. There are three sets of values that frame traditional notions of constitutionalism: (a) federalism, or the spatial division of power, (b) the separation of powers between different branches of government, (c) the notion of constitutional rights. Each of these address different aspects of the ‘problem’ of power—its al-location, application and restriction—within the nation state. While these constitutional values, with their diverse historical origins, have become increasingly ‘universalized,’ their application in increasingly varied historical, cultural, and political contexts has produced a diversity of approaches and understandings which provide a diverse ‘global text’ for political actors, constitution makers, constitutional interpreters, and litigants.

5. The Practice And Theory Of Comparative Constitutionalism

As a field of empirical academic research and legal practice, comparative constitutionalism suffers many of the methodological challenges that have encumbered the fields of comparative law and politics. Apart from the more obvious difficulties of language and the different legal traditions which plague the comparative law project, each country’s historical, social, political, and economic contexts require attention in studying the origins and meanings of particular constitutional forms. More recently, the increasing comparative jurisprudence of constitutional and supreme courts in a number of countries has broadened the scope of comparative constitutional law, and has raised questions about the theory and practice of constitutionalism in the context of a globalizing world. On the one hand, there is a growing attempt to formulate constitutional theories to throw light on the ‘increasingly cosmopolitan character of constitutional interpretation’ (Choudhry 1999). On the other hand, there is a call for Anglo-American lawyers to recognize the need for a broader legal theory of the state or civil-law type Staatslehre (Dyzenhaus 1998) as an essential step towards the formulation of an adequate theory of the relationship between law and political power. It is this relationship that is at the heart of the idea of constitutionalism and the object of research and practice in the growing field of comparative constitutionalism.

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