“Comparative constitutional law” is a difficult subject to grasp. Such a statement may surprise or even confuse readers, especially students. The new edition of Droit(s) constitutionnel(s) comparé(s) sets to unpack this difficult subject.
Why such a statement? Because “constitutional law” refers not only to the body of positive law rules that have a power within the legal order, but also to the discipline that is concerned with the study of these rules. However, the problems posed by the study of positive constitutional rules and principles are not necessarily approached in the same way, nor are the answers identical. For “comparative constitutional law”, the confusion is not quite the same. There is no doubt that “comparative constitutional law” does not correspond to a body of rules of positive law. Traditionally, “comparative constitutional law” proposes, according to a specific methodology, to compare different constitutional experiences. Indeed, comparative law is most often presented as a method and, without doubt, the methodological question is central. But this questioning is at the service of another questioning: how does one think about law? And, more specifically, how does one think about constitutional law? Comparison presupposes the plurality and diversity of set of rules, whereas the search for a common constitutional law presupposes transcending diversity and plurality in order to set out its foundations.
In order to find one’s way through this living matter, I intend to show the paths that lead to it. It is in a way a guide to reflection with concrete issues. Thus, the book is organized around simple and recurrent questions of comparative legal studies. Why compare? How to compare? What to compare? These classical questions will be preceded by an introductory chapter on comparative constitutional law in both directions: unity and plurality. In this way, I hope to make people want to compare by showing what is strange in what is familiar to us
From a methodological point of view, it is not proposed to follow a comparative method. There is no good method. There are only comparative approaches that justify the choices made (aim of the comparison and selected cases). This book is therefore in favour of pluralist comparative approaches, while insisting on the contextual and cultural approach, and in the production of a reasonable comparative and argumentative discourse. Methodological pluralism does not mean that everything is comparable in any way, but this can only be known once the question of a comparative approach has been raised. If we opt for a plurality of approaches, comparison no longer serves a discourse, but is an instrument, among others, for a critical understanding of law. The comparison of constitutional legal orders is therefore primarily considered as an epistemological tool for a better understanding of the changes linked to European integration and legal globalization and their effects on constitutional matters. Depending on the choice of comparison, different ways of conceiving the constitutional matter take shape. Constitutional law appears in its heterogeneity.
This revised and expanded edition incorporates the major upheavals of the last decade. The most striking is the end of a monolithic representation of the globalization and convergence of constitutional legal orders. Constitutionalism is now accompanied by multiple adjectives that show the difficulties of defining it in a context that includes experiences well beyond the Western and Atlantic horizon. Far from the figure of an auxiliary science in which it has been confined, comparative law is today indispensable: it offers concepts and tools to understand constitutionalism while avoiding the flattening of constitutional reality; it gives constitutional theory an empirical basis.
Posted by Marie-Claire Ponthoreau, Professor of Constitutional Law and Comparative law at the University of Bordeaux (France).
British Association of Comparative Law 