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Summary Everything you need to know for Comparative Constitutional Law
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Week 1Approaches to comparative law
There are numerous views about comparing law. One approach is the sceptical
approach, a famous supporter of this view is Legrand. According to him,
comparing two systems means one should be an insider in both systems which is
nearly impossible or at least will take a lot of time. The reasons for this
requirement are that there are:
1. Linguistic problems. Do literal translations exist? (especially important for
Legrand: theory of translation is missing, when is something correctly
translated?)
2. Risk of gaps in information. For one to fully understand the legal norm, one
should understand its role based on the cultural, historical and political
background (Legrand: theory of law is missing, what is meant by the
researcher by ‘law’, broad or narrow definition, does it also include legal
culture).
3. The difference between law in books vis-à-vis law in practice. Can the norm
be strictly read from its phrasing or does it mean something very
differently for example because case law or practices have made it so (e.g.
according to the Dutch Constitution the King has a lot of power whilst in
reality he does not).
4. Research biases. Are you aware your interpretation of a norm can be
influenced by your own legal background?
5. How are the countries selected (is there an academic reasoning behind it).
On the other side of the spectrum is the naïve approach. Its researchers compare
legal norms without taking into account the above mentioned methodological
challenges. These practitioners assume that the entire legal effect of a norm is
written down (positivism) and ignore the legal culture. The middle ground is
taken by the modest approach. Practitioners are as much aware of the challenges
as they can be. They acknowledge them but they do not believe those challenges
make research invaluable.
How to compare?
As mentioned. The traditionalists compare just the legal norms. Then there are
functionalists who compare the function of law with each other, so maybe an
‘overeenkomst’ is not the same as a ‘Vertrag’ but it does have a lot of the same
functions, and based on those functions the concepts are compared. One critique
is that some systems are so different from each other that there are no similar
functions. For instance a capitalist and a communist, or a civilized and an
underdeveloped state possible do not have similar functions. A variation of this
method can be the sociological approach, which does not look at the same
function but looks at how similar problems are solved.
Also the level of comparison is important. Are we comparing certain laws with
one another, thus more of a traditionalist approach (law as rules) (micro), or are
we analysing systems including social, cultural, political and economical contexts
(macro). Note that they are related so it is best to look at both levels.
Why compare?
, 1. It expands the knowledge about law. About what role it can play, its
relation to the social and historical background. We can hence find reasons
for why certain legal orders are the way they are.
2. You can group systems.
3. You can develop skills to critically examine your country’s legal order.
4. You have a pool of examples you can draw from when you would like to
change something about your legal order (for example, looking to become
a federal state or another electoral system) (mostly for the legislature),
5. You can find solutions abroad for your domestic legal problem (mostly for
the judiciary).
6. Developing international law. It leads to a common understanding of
concepts within treaties, and you know what effect concepts in treaties
have, for your own state but also for the others.
7. Harmonisation. Here the political goal is to smooth out differences. A
consequence is that some national legal orders are modified. Note, that is
often comes with a notion of what is the ‘better’ law.
Week 2
Constitution
The ‘ancient constitutions’ (before 18th century, before the American and French
revolutions) described the legal status quo of a country. No prescriptive value.
Then modern constitutions came along. Idealising a type of modern constitutions
can be regarded as constitutionalism. It has five characteristics:
1) Legal character, it binds all actors within a state and prescribes their
behaviour,
2) Regulates public power. It entails the three functions of Kortmann namely:
constituting government institutions, attributing powers to them,
regulating relations between the institutions and with regard to the people.
The last point presupposes the rule of law (governmental actors are also
bound by law) and fundamental rights.
3) No pre- or extra-constitutional bearers of public power (like a king who can
write bills on his own accord),
4) Higher ranking law,
5) People as legitimate source, which presuppose some democratic influences
whether this is direct or indirect. (this condition can also be shown by
elements like a flag or anthem belonging to the people).
Because the shift to a modern constitution was not made available in previous
constitutions, a revolution, which expresses the people’s whish, was needed (so a
constitution could either come into existence through revolution or through
modification based on a previous revolutionary or otherwise foundational
constitution; a notion of a social contract). After Napoleon’s defeat restaurative
constitutions occurred which gave power to a select group of men but normally
entailed some liberal rights (non-democratic liberal constitutions).
Note that a lot of what we call ‘modern constitutions’ lack some elements. For
example, if only a very small portion of the people could vote, are the people
then the legitimate source? Also, the Weimar Republic’s constitution could be set
aside with a regular Act of Parliament if such act had a qualified majority. Did the
constitution then have a higher rank? And also, the Weimar republic allowed for
, the destruction of democracy with democratic means (radical democracy: non-
liberal democratic constitutions; non-liberal due to the restriction of rights by the
usage of emergence powers). Is the fifth condition fulfilled then?
With the term constitution, some typologies can be made (which can be useful in
comparative research). First it is important to note that we see ‘constitution’ in a
broad/substantive sense, meaning law in which one of those functions of
Kortmann shows up. This vis-à-vis a constitution in a narrow sense referring to
the document oftentimes called the ‘constitution’, which is characterised by a
higher rank and a more difficult amendment procedure. (this makes that
European law can be seen as constitutional law but only in the broad sense and
not the narrow one. It also does not constitute the state the EU but every
member-state individually). Note that for example the UK does not have a written
document called the constitution but it certainly has constitutional law (which
also entails case law and otherwise unwritten law). France places its document
called the Constitution on the same level as other legal documents, like the
Rights of Men (we shall later see that this is relevant for the French judicial
review). There are also ineffective constitutions like the Russian one. On paper it
ticks the boxes for constitutionalism but in practice it lacks them (see Week 1,
where we discussed the importance of looking at the possible difference between
law in books and law in practice when comparing). Other examples are Hungary
and Turkey. They seem democratic but the practice of emergency power usage
and oppressing the press makes them not so.
Week 3
Constitutional change
When constitutional change is discussed, most often the amendment procedures
of the written documents called ‘Constitution’ are looked at. When we use the
broad/substantive definition of constitutional law, it also includes organic laws
(like a municipality law or a electoral law), case law and customs and
conventions. This is why measuring the rigidity of constitutional change is
difficult.
There are various opinions about whether constitutional change should be easy
or not. The supporters of a flexible constitution argue that 1. It eliminates extra-
constitutional change like changes via unelected judges (which lacks legitimacy)
or revolutions (avoids non-compliance), 2. It keeps the constitution alive thus
checking the state organs, 3. It is more representative of the current people living
in a modern time (pouvoir constitué). Opposers 1. A rigid constitution defends the
compromise which was made long ago, 2. So it avoids whimsical change in favour
of some few (must a party in a bipartial system be able to change the
constitution?), 3. And it respects the will of the pouvoir constituant.
Measuring rigidity of the constitution
Traditionally the rigidity of the constitution in the narrow sense is measured by
the number of times it has changed. It takes into account whether multiple
readings of the amendment bill, supermajorities, referendums, eternity clauses or
in federal countries approval by territorial subunits are needed.
It therefore misses out the content of the change (whether it was a minor or
major change), whether the document ‘constitution’ entails a lot of constitutional
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