What is Comparative Constitutional Law?
posted by David Fontana
Much of my blogging this next month will be about the field of comparative constitutional law. What is the field? What projects are people working on in the field? What does it matter?
For now, though, I wanted to write one brief thought that has occurred to me as I have taught my comparative constitutional law class at GW the past two spring semesters: Is comparative constitutional law just an example of constitutional theory or constitutional design?
Some parts of comparative constitutional scholarship help us understand a particular country more, perhaps. So, if you have something interesting to say about the German Basic Law, that might help us understand Germany a little more than we did previously. This is particularly so if perhaps we compare the German Basic Law and the American Constitution, assess their differences, and through this assessment we gain a better understanding of both countries.
But part of what comparing constitutions does is force us to ask first-order questions about constitutions–what they are and what they should do. If one country uses abstract review, and one country uses concrete review, we can compare their experiences, and see how different systems of judicial review operate, which countries each system works best for, and so on. This is partly about comparing countries, but just as much it is about having more data points about how different constitutional regimes work. There is nothing necessarily “comparative” about this–perhaps, then, there is just something more systematic about it than other forms of scholarship, and that might be what comparative constitutional law can contribute to constitutional scholarship–a more empirically informed version of answering some of the same questions.
April 30, 2008 at 1:46 pm
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Responses (6)
Patrick S. O'Donnell - April 30, 2008 at 2:39 pm
I think this is an extremely important exercise, especially if it helps us overcome the tendency to think other constitutions should be “like ours” (as an implicit or explicit standard) or, relatedly, that there’s one ideal (model) constitution that fits all. I think the British and South African constitutions (Sunstein having written some important things about the latter), for instance, provide us with interesting contrast cases (for different reasons) to our own constitution, and Walter Murphy’s discussion in Constitutional Democracy (2007) offers much food for thought about the Israeli “example of tag-team writing of a constitutional document,” as well as the Knesset’s statutory enactment of “Basic Laws” over several decades. And seeing how the Indian constitution endeavors to deal with an extremely complicated society (with a long and equally complicated history) is a fascinating study in and of itself. Finally, I find the various ways in which Shariah (God’s Law, Divine Will) is invoked in constitutions in predominantly Islamic countries or avowedly Islamic states quite fascinating, as it bespeaks a little-appreciated pluralism within the Islamic world and bears some functional comparison to the use of natural law principles in some constitutions.
So, I’m delighted to see someone such as yourself working and teaching in this area and I hope it portends a trend in keeping with our efforts to grasp the myriad phenomena that fall under yet wider rubrics like globalization, democratization, human rights, and so forth.
Incidentally, I’ll be posting a bibliography for “constitutionalism” sometime before summer over at the Ratio Juris blog which will have an ample number of titles for those beginning an exploration of comparative constitutionalism.
A.J. Sutter - April 30, 2008 at 8:10 pm
Since you mention German law, I’m curious: about 25 years ago, while in law school, I wrote my note (which I did not finish for publication, sadly) about “separation of church and state” (Trennung von Kirche und Stadt, a term used by the German Federal Constitutional Court, a/k/a Bundesverfassungsgericht) in the then-West Germany. This doctrine was used to justify results opposite to what we’d expect in US — notwithstanding that the Court back then often cited USSCt precedents.
E.g., (a) hospitals run by religious institutions were exempted from state regulations about, e.g., doctors’ educational requirements, and (b) state (Land) governments were required to collect the “church tax” (Kirchensteuer) as a payroll tax, and remit it to the religious communities. Notwithstanding the name, this was not limited to Christian churches; e.g., one could be a member of the the Jewish community of Munich from birth, and liable to pay tax to that community, unless one (or possibly one’s parents, I don’t recall) had taken affirmative steps to opt out. The requirement of state involvement came from some provisions of the Weimar constitution that were carried over into the Grundgesetz. The notion of “separation” was used by the various courts, including the BVerfG, to justify these results.
Please forgive me for asking such a self-indulgent question, but I’ve been away from the academic world since I graduated: do you know if anybody has published about this in the Anglophone community in recent years?
Paul Horwitz - April 30, 2008 at 10:26 pm
I can’t speak very directly to your question, but lots of folks have published on German constitutional law relating to religion in the intervening years; I even published something, although it was in some ways only incidentally about German law. But see especially Donald Kommers’ great work on German constitutional law, currently in its second edition but with a new one due relatively soon, I think.
A.J. Sutter - May 1, 2008 at 10:00 am
Thanks for your reply. I recall that I did look in this book at one time, but if memory serves I don’t think he had more than a few pages discussing the topic at the institutional level. If you have an idea of when the third edition is due, I’ll put it on my Amazon wish list.
Free exercise (sc., of individuals) seems to be the hotter ticket for his book and for SSRN as well, judging by the slim pickings there. But in Germany, Staatskirchenrecht (church-state law) is a distinct and significant sub-field of law, with its own journals and textbooks. I was drowning in a sea of journal articles, monographs and Festschriften, thanks to the resident angels at Boalt Hall who made sure their library had all that stuff.
If you are looking into German constitutional law beyond just looking for cases that have fact patterns similar to those that might arise in the US, more power to you. One of the great things about comparative law is it gives one the chance to look at the world through a completely different set of categories.
And an incidental benefit is it’s a good way to deepen one’s humility about spelling: in my previous post I of course meant ‘Staat’, not ‘Stadt’.
Craig Martin - May 4, 2008 at 6:01 pm
I just wanted to echo that I think this is an important contribtuion, and I will be following the posts on this subject with great interest. I also tend to agree with the last point made in this post, that the comparative analysis helps to provide the empirical data for testing hypotheses regarding various constitutional principles and structures.
A.J. Sutter - May 5, 2008 at 11:04 am
Empirical data for testing hypotheses? Maybe (empirical) object lessons for how things can get messed up; or, more optimistically and occasionally, for how something might work in a specific cultural context. But for hypothesis testing in the statistical inference sense, you’d need to be able to control for other variables. I don’t think you’ll have that chance when it comes to comparing different countries’ constitutions.
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