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Summary LAWS10090 Constitutional Law INTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW
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LAWS10090 Constitutional Law INTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW
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SEMINAR 6- WEEK 7- READING NOTESINTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW
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.
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.
On the other hand, comparative constitutional law is a subfield of comparative law.
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.
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.
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.
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).
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.
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.
USES OF COMPARATIVE CONSTITUTIONAL LAW:
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
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