The Cambridge Companion to Comparative Constitutional Law – R. Masterman and R. Schütze (eds), 2019

Comparative constitutional law is a thriving field of scholarship, with an increasing presence on Law School curricula across the world. The Cambridge Companion to Comparative Constitutional Law thereby seeks to provide readers with a detailed introduction to central topics and themes in comparative constitutional law. How can one go about that?

The ‘objects’ of comparative constitutional law are of course ‘constitutions’. But what are ‘constitutions’? From a purely descriptive point of view, constitutions simply reflect the institutions and powers of government; and comparative constitutional law here becomes an exercise in ‘comparative government’.[1] From a normative perspective, on the other hand, constitutions ‘order’ societies according to particular political principles. Constitutions here not merely describe political societies but prescribe their composition and actions.

The prescriptive and descriptive dimensions of constitutions are brought into sharp relief in the sphere of comparative constitutional law. Comparing constitutions requires us to consider differences (and similarities) of form, character and so on, but also invites reflection upon the causes and consequences of normative linkage and divergence. The exercise of comparison also invites us to step back from the primary subjects of constitutional law – constitutions themselves – to facilitate examination of concepts and phenomena ranging beyond the experience of individual constitutions which may not be immediately apparent to students of national constitutional laws.

The processes and products of comparison are therefore both of intrinsic importance and may, in turn, permit unseen elements of individual constitutions to be illuminated or examined from a new perspective.[2] Comparative constitutional law may also inform constitutional reform or design. While the search for the ideal constitution may be quixotic, the refinement of existing standards or the creation of a new model by reference to alternatives, may be, for some, a more realistic objective.

From these perspectives, comparative constitutional law serves ends that might be reflected at the national, jurisdiction-specific, level. But it is also clear that comparative constitutional law is an endeavour which should be valued in its own right. The forces of globalisation have worked to ensure that though the ‘autobiographical’ and ‘idiosyncratic’[3] characteristics of national constitutions remain worthy of note they are increasing accompanied by degrees of symbiosis between and across systems. Though debates concerning sovereignty tend to imply an insular tendency, it has become increasingly clear – as treaty-based organisations have introduced transnational constitutional rules, and as courts have borrowed from other jurisdictions – that national constitutions are to varying degrees porous, and indeed that homogenising trends between them can be observed.

This process of constitutional symbiosis is not confined to States alone. Today, the very idea of what a ‘constitution’ is has migrated from the ‘national’ to the supranational or international sphere. And while the days of the nation state are surely not yet over, the state-centred definition of what a ‘constitution’ is – a definition that became prevalent in the eighteenth and nineteenth century – has come to be challenged in the twentieth and twenty-first century by such legal phenomena as the European Union and the United Nations. But can we ‘really’ speak of the European Treaties or the UN Charter as ‘constitutions’; and to what extent have they taken ideas from the constitutional traditions of its member states? The European Court of Justice certainly thinks so;[4] and even within the context of international law, ‘constitutionalising’ forces have famously been identified.[5]

In seeking to respond to these issues, the twenty-two chapters in the Cambridge Companion to Comparative Constitutional Law are arranged into several thematic parts. Part I thereby aims to chart the contours of comparative constitutional law, first by mapping the terrain of ‘constitutionalism’ – the substantive ground occupied by constitutional laws – and second by examining the distinctive methods employed in the comparative analysis of constitutions and constitutional laws.  Here we address what is ‘comparative’ and what is ‘constitutional’ within comparative constitutional law.

Part II presents a (selective) number of State constitutions and their historical evolution. Complementing the ‘generalist’ aspect of Part I, it is meant to offer ‘concrete’ illustrations of five – diverse – constitutional orders; and we have primarily selected them as specific manifestations of particular constitutional structures or philosophies. The UK Constitution here embodies not only the quintessential ‘unwritten’ and ‘descriptive’ constitution, but it also establishes one of the oldest ‘monarchical’ systems of the world. The French and the US Constitutions, by contrast, represent the prototypes of the modern ‘normative’ constitution, which are both based on the ‘republican’ distinction between ‘constituting’ and ‘constituted’ power. These three constitutional orders also offer an excellent contrast between pure ‘parliamentarism’ (the UK) and pure ‘presidentialism’ (the US) with the French constitutional system lying in between the two extremes. The British and French constitutional orders are furthermore excellent expressions of unitary constitutional orders, whereas the American and Indian Constitutions are excellent examples of federal constitutional orders. The Indian Constitutions is furthermore a potent and powerful illustration of a vibrant Asian and post-colonial legal order, whereas the Chinese Constitution may today be characterised as ‘the’ paradigm case for a modern socialist constitution.

Part III analyses key structural principles of contemporary constitutionalism. The five ‘ruling’ ideas for us here are: democracy, the separation of powers, the rule of law, human rights, and federalism. Each of these core ideas of modern constitutionalism emerged independently; yet there are also positive and negative correlations between them. For example, the democratic principle arguably stands in clear tension with the separation of powers principle; and it equally collides with the idea of fundamental rights removed from the democratic will represented by the majority. The rule of law, on the other hand, accords very well with both the separation-of-powers principle as well as the idea of fundamental human rights. The constitutional principle that undoubtedly stands mostly on its own is federalism. For whereas the other constitutional concepts are ‘unitary’ concepts that determine who holds power among a number of (horizontal) institutions, federalism concerns the vertical division of powers between two levels of government. And this duplication of the constitutional levels within a ‘compound’ republic raises very interesting questions with regard to, for example, democracy but also the protection of fundamental rights.

Part IV explores five governmental institutions that are the key players within most liberal democratic states. The democratic principle within modern constitutions indeed insists – first and foremost – on the existence of a ‘parliament’ as the representative of the ‘people’. The idea that the legislative function belongs to parliament has become so engrained in our constitutional imagination that older forms of ‘royal’ legislation have nearly disappeared. Following the separation of powers principle, the legislature often exists in isolation of the executive; and with the rise of the ‘administrative State’ in the nineteenth century, many modern constitutions further distinguish between ‘governmental’ and ‘administrative’ functions. To the list of ‘parliaments’, ‘governments’, ‘administrations’, ‘courts’ must of course be added as the institution charged with the judicial function; but we have also decided to add a fifth – emergent – branch: independent fiscal institutions (IFIs). Though IFIs have a longstanding presence in some systems, their rise to prominence in the wake of the global financial crisis suggests that they are coming to be seen as performing an essential extra-governmental (and extra-legislative) function in the regulation and monitoring of public finances.

Part V finally takes account of the fact that most state constitutions no longer live in splendid isolation (even if some pretend they do). Our contemporary world is a global world; and today, many nation-states are deeply embedded in a wider network of transnational legal structures. Can we thus speak of transnational constitutionalism; and if so, what are its horizontal and vertical dimensions? Transnational constitutionalism may be found in a number of places, and the rise of international organisations – like the UN and the WTO – here only represent the most general and universal phenomena. Regional transnational structures can be found in, for instance, the ECHR system and the European Union with the latter representing the most developed form of supranational constitutionalism – a constitutionalism that has extensively ‘borrowed’ from the constitutional traditions of federations, like the US and Germany. But more often, constitutional ‘transplants’ take place horizontally between state legal orders; and the various informal and formal instances of constitutional borrowing and transplants – both as a widespread phenomenon and in the specific context of ‘Commonwealth’ model constitutionalism – are discussed in our final chapters.

For the reader’s convenience, below is our Table of Contents:

  Part I. Theoretical Foundations
1 Comparative Methodologies

Ran Hirschl

2 Constitutionalism(s)

Robert Schütze

   

Part II. Historical Experiences

3 The United Kingdom Constitution

Mark Elliott

4 French Constitutional Law

Denis Baranger

5 U.S. Constitutional Law

Vicki C. Jackson

6 The Constitution of the Republic of India

Anashri Pillay

7 The Constitution of China

Qianfan Zhang

   

Part III. Constitutional Principles

8 Democracy

Paul Craig

9 Separation of Powers

Christoph Möllers

10 Rule of Law

András Sajó

11 Human Rights Law

Conor Gearty

12 Federalism

Raffaele Bifulco

   

Part IV. State Institutions

13 Parliaments

Nicola Lupo

14 Governments

Philipp Dann

15 Administration

Susan Rose-Ackerman

16 Courts with Constitutional Jurisdiction

Cheryl Saunders

17 Independent Fiscal Institutions

Cal Viney and Thomas Poole

   

Part V. Transnational Constitutionalism

18 Multi-Layered Constitutions

Roger Masterman

19 International Constitutionalism

Jan Klabbers

20 European Constitutionalism

Kaarlo Tuori

21 A New Commonwealth Constitutionalism?

Claudia Geiringer

22 Constitutional Transplants

Gábor Halmai

We are acutely aware that this arrangement has left some very important topics untreated. African and Latin American constitutionalism would have deserved some special treatment; and the re-emergence of theocratic constitutions might have equally deserved a special chapter. The post-communist constitutions within Central and Eastern Europe would have offered a fascinating case study in both constitutional design and transitional regimes, while the rise of authoritarian regimes in the world – whether it be Turkey or North Korea – could have provided a contrasting tonic to liberal triumphalism. And yet: each introduction to a subject must make some ‘hard choices’; and the choices we have made will of course be revaluated in a future second edition!

Posted by Professor Roger Masterman and Professor Robert Schütze (University of Durham).

 

[1] S.E. Finer, Comparative Government (The Penguin Press, 1970).

[2] M. Siems, Comparative Law (Cambridge: Cambridge University Press, 2014), pp. 2-5.

[3] S.E. Finer, V. Bogdanor, B. Rudden, Comparing Constitutions (Oxford: Oxford University Press, 1995), p.7.

[4] Cf. Opinion 1/91 (European Economic Area), [1991] ECR I-6079, [21]: ‘[T]he [EU] Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a [Union] based on the rule of law.’

[5] J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalization of International Law (OUP, 2009).