SCOPE OF COMPARATIVE CONSTITUTIONAL LAW IN LEGAL STUDIES

ABSTRACT:

Comparative Constitutional Law is a newly animated field in the early 21st century. Before that,
this field had no such broad range of interdisciplinary interest, with lawyers, political scientists,
sociologists. Now, even economists are making contributions to the collective understanding of
how constitutions are formed and how they operate. Such demand has never been there from
courts, lawyers and constitution-makers in a wide range of countries for comparative legal
analysis and never before the field has been so entrenched, with new regional and international
associations providing for the exchange of ideas and the organization of collaborative projects.

This manuscript emphasizes the broader scope of comparative constitutional law in legal field.
With the maturity of the field, it is of utmost importance to know the scope of Comparative
constitutional law for academic and legal debate. Such efforts will advance learning to a great
level, by giving attention on outstanding questions as well as raising awareness of issues worth-
pursuing in under-analyzed jurisdictions.

INTRODUCTION:

The necessity for comparative method of study has become inevitable in any study of human
culture, achievements and institutions because today the scale of human existence is no longer
cramped by national sub-divisions but is as wide and unencumbered as the horizon.

Poet’s dream in the 19th century - “the parliament of man, the Federation of the world” – is
taking a realistic shape in the 20th Century.1 The development of the League of Nations after the
conclusion of the First World War and of the United Nations after the conclusion of the Second
World War, has amply established that even erstwhile warring Nations are bound to join together
for the resolution of common problems which are more important than the national causes for
which they had been fighting.

The devastating World Wars have taught the lesson that war can be avoided if there is a better
understanding and promotion of tolerance amongst the Nation states, which, undeniably, have

1
D.D.BASU : COMPARATIVE CONSTITUTIONAL LAW, 155 (Justice G B Patnaik, Yasobant Das & Rita Das eds., 3rd
Edition, LexisNexis 2014).

1
their different individual needs. Such better understanding can develop only if mankind,
inhabiting different parts of the globe, comes to appreciate that they belong to one and only
family of Man and that their problems for survival are alike, if not identical.

A study of political and legal systems of different countries promotes such better international
understanding. The functions to be performed by a modern political system are almost same all
over the world, such as legislation, administration and adjudication. A realization that the goal of
different political systems is to best perform the same functions replaces parochialism by
universalism which is man’s only way to survival in the face of the myriads of inexplicable
problems which threatens todays’ peaceful existence of the human race.

Meanwhile, the advancement of science and technology as well as of global communications

through jet carriers, satellite, television and the like, it is no longer possible for any nation to
survive in isolation. Men should understand that they are not self-contained parts of national
units, but members of a family of nations, having common social, economic and political
problems, which can be solved only by united efforts, deriving benefit from mutual experience.
The happiness of man is no longer the happiness of the cave-man, rather winter wined with the
happiness of the entire species.

Comparison is a natural human activity and is always an exciting experience to cross the
frontiers of one’s own country and to travel into other regions to improve the system of one’s
own country.

It should be remembered that “Comparative Law” is not a principle or body of rules of law, but
an approach to or method or technique of studying, law or any breach or topic of it, arising from
the multiplicity of legal systems in the world and the different approaches adopted to common
problems, by examining attitudes, institutions or rules on any matter of any two or more legal
systems. Further, the comparative study is valuable for parting the study of any one legal system
into perspective and developing the understanding of it. It is also invaluable for jurisprudential
studies, of the nature, function and general ideas of and about law. Constitutional law is last
resort. It is the stage of final control of elected representatives by judges, and therefore quite
2
often hosts the most obvious clash between legislature and judiciary. Constitutional law shapes
and confronts all other law. Any case arising in the constitutional field is a case of some other
legal nature, and poses a constitutional question on the side.

 DEFINITION:

Comparative constitutional law is the study of differences and similarities between the laws of
different countries. It comprises the study of different legal systems in existence in the world,
including the common law, civil law, socialist law, Islamic law, Hindu law, and Chinese law and
alike. It includes the description and analysis of foreign legal systems, even where no explicit
comparison is undertaken.2 In the present age of internationalism, economic globalization and
democratization, the importance of comparative law has enormously increased.

 HISTORY:
Studies on Comparative Constitutional Law are moderately new field of research. For a long
time, there has been no extensive and certainly no exhaustive writing in the era. The first studies
concentrated on systems of governance and started to approach constitutional questions
regarding judicial review. Such studies separate structure and form from content and based on a
deemphasizing understanding of the aspects and inferences of structures on the content of a
given culture. A political system might give relatively more power to elected or appointed;
lifetime or term serving judges, and the selection of those judges might be interesting in terms of
class, gender, race, political affiliation, educational options, and the like. The accessibility of a
political system (especially by minorities) might make a remarkable difference as to the
necessity of judicial review. The organizational reality of a political system is a political reality
of power, and therefore of importance to people subjected to it.

2
www.wikipedia.com.

3
Montesquieu:

According to the present view, Montesquieu is regarded as the 'father' of comparative law. The
political and civil laws of each nation should be adapted in such a manner to the people for
whom they are framed that it should be a great chance if those of one nation suit another. They
should be in relation to the nature and principle of each government; whether they form it, as
may be said of politic laws; or whether they support it, as in the case of civil institutions.3

They should be in relation to the climate of each country, to the quality of its soil, to its situation
and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or
shepherds: they should have relation to the degree of liberty which the constitution will bear; to
the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and
customs.4 He also advises that "to determine which of those systems i.e. the French and English
systems for the punishment of false witnesses, is most agreeable to reason, we must take them
each as a whole and compare them in their entirety."5

Further, according to him, as the civil laws depend on the political institutions, because they are
made for the same society, whenever there is a design of adopting the civil law of another nation,
it would be proper to examine beforehand whether they have both the same institutions and the
same political law.6

 PURPOSE OF COMPARATIVE CONSTITUTIONAL LAW:

Comparative constitutional law is an intensive academic study of separate constitutions, each one
examined in its constitutive elements; how they differ in the different legal systems, and how

3
http://lookandgaze.blogspot.com/2012/05/importance-of-comparative-law.html.

4
https://www.law.utoronto.ca/documents/conferences2/Trebilcock09_Davis-K.pdf.
5
supra note 3.
6
http://www.renanconsulting.com/main-legal-systems-of-the-world/.

4
their elements can be combined into a system. Studies of comparative constitutional law may be
viewed as micro or macro comparative constitutional analysis,

a) Micro comparative constitutional analysis: This refers to detailed comparisons of

constitutions of two countries,

b) Macro comparative constitutional analysis: This implies broad-ranging studies of several

countries.

Comparative Constitutional law studies the manner in which various principles of different
constitutions are organized, interpreted and used in different systems or countries. Today it give
the impression that the principal purposes of comparative constitutional law are:

 to attain a deeper knowledge of the different countries constitutions in effect to perfect

implications of constitutional principles in the legal systems in effect possibly,
 to contribute to a unification of proper constitutional existence in every country, of a
smaller or larger scale.7

Donald Kommers identifies that in comparative constitutional law, there is “a range of models”
of constitutional justice, begin to differentiate the particularistic from the universalistic, and
suggest, for American scholars and judges, that there is a world elsewhere that can enrich the
study and development of U.S. constitutional law. The emergence of what one commentator has
called “a global community of courts” where constitutional courts are borrowing and citing each
other’s precedents, is certainly going to help advance the field of comparative constitutional law.

Dennis Davis, who is judge in the Cape Provincial Division of the High Court of South Africa
and one of the four judges contributing essays to this volume, explains how comparative

7
supra note 3.

5
constitutional ideas are being used to aid his own deliberative process. 8 With the constitutional
protection of cultural rights in mind, Judge Davis writes:

South Africa is not alone in dealing with the problem of reconciling the right to culture with
apparently contrary commitments in the constitution. The range of concern about the role of
Aboriginal law in Australia that was triggered by the Mabo cases is indicative of a similar
problem of recognition. And the idea that cultural autonomy is a constitutional right worth
preserving finds recognition in some jurisdictions.9

The Canadian Supreme Court has granted a considerable level of meaningful autonomy in R. v.
SPARROW 10. The rich cross-fertilization of constitutional ideas and the active dialogue judges
are having with foreign precedents will be grist for other comparative constitutional law scholars
to mill. The timing of this book’s publication could not have been better. The international and
comparative constitutional law influences two high profile cases in the Supreme Court in the
year 2002.11

In LAWRENCE v. TEXAS 12, Justice Kennedy cited DUDGEON v. UNITED KINGDOM 13 , a

decision of the European Court of Human Rights striking down laws that proscribed consensual
homosexual conduct in Northern Ireland, as persuasive authority for the point that Western
civilization has come to view anti-sodomy laws as mere prejudice and a violation of the rights of
a politically unpopular group.

8
Vicki C. Jackson and Mark Tushnet, Defining The Field of Comparative Constitutional Law, LAWCOURTS.ORG
288 (Oct 19th 2003, 10:04AM) http://lawcourts.org/LPBR/reviews/Jackson-Tushnet1003.htm.
9
ibid.

10
R. v. Sparrow, 1 SCR 1075 (1990).
11
Supra note 8.
12
Lawrence v. Texas, U.S. (2003).
13
Dudgeon v. United Kingdom, 45 Eur. Ct. H.R.(1981).

6
And in GRUTTER v. BOLLINGER 14 , Justice Ginsburg’s concurring opinion, joined by Justice
Breyer, cites both the International Convention on the Elimination of All Forms of Racial
Discrimination and the Convention on the Elimination of All Forms of Discrimination Against
Women in support of the majority’s insistence that affirmative action programs have an end
point. Indeed, it appears that the U.S. Supreme Court will become more receptive to the
constitutional experiences of other nations is beginning to be realized.15

Thus, the field of Comparative Constitutional Law is an important contribution to a rich tradition
of public law scholarship on courts and constitutions in comparative perspective.

 SCOPE OF COMPARATIVE CONSTITUTIONAL LAW:

Civil society has always rested on the principle that “comparisons are odious”. This principle is
true in many circumstances, but has intended to prevent the work of comparative legal scholars,
who often seek to explain or excuse, rather than to evaluate the differences between the legal
systems that they study.

Montesquieu rightly observed that laws should be adapted to the people they are meant to rule,
but did not shrink from advancing his opinion concerning which legal systems were “les plus
conformes à la raison”. This raises the question whether there are any universals in
constitutional law. What does reason require of a just constitution? Or should we accept, with
Thomas Hobbes, that is no justice or injustice at all, until a civil power asserts itself to tell us
what justice will be, from now on. The proper purpose of constitutionalism has been, from the
beginning, to advance the common good through law. Partisans of constitutional justice must
struggle to discern “what combination of powers in society, or what form of government, will
compel the formation of good and equal laws, an impartial execution, and faithful interpretation
of them, so that the citizens may constantly enjoy the benefit of them, and be sure of their
continuance.”

14
Grutter v. Bollinger, U.S. (2003).

15
Supra note 8.
7
The architects of law and government have divided certainly into two parties, the partisans of
constitutionalism or government “de jure” on the one hand, and the partisans of arbitrary power,
or government “de facto” on the other. The whole innovativeness of constitutional government
rests on the premise that some legal institutions are better (than others, and that legal institutions
should be constantly improved to achieve complete justice.

Modern constitutionalism achieved its greatest successes and most rapid advancement beginning
in the eighteenth century with the French and American revolutions, but the constitutionalists of
that period considered themselves to be part of a much longer historical continuum, going back
through the English, Dutch and Italian resistance against arbitrary power to the political
controversies of Greece and Rome. The Renaissance and Reformation in Europe, the English
Civil War, and the “Glorious” Revolution of 1688 all encouraged the study of the principles of
good government, but the basic elements of constitutional design as understood by the advocates
of constitutionalism remained remarkably constant for two thousand years.

According to John Adams, the advantages and inconveniences of the different forms and
combinations of government were as well known “at the neighing of the horse of Darius” as they
are today. The eighteenth-century innovators of practical constitutionalism considered
themselves as participants in the regular course of the liberal improvement of the arts and
sciences, seeking the general advancement of “civilization” and “humanity.” Their study of the
theory and practice of government in such a way led to a growing consensus in Europe and
America that even well-established autocracies found difficult to resist.

These “checks and balances of a free government” take account of representation in the
legislature, periodic elections, and broad suffrage. Proponents of constitutional government have
sought to realize justice by founding laws and institutions “on the simple principles of nature,”
discovered “by use of reason and the senses.”

 What place, then, for comparisons?

8
Instruments such as the Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights, and the International Covenant on Economic, Social and Cultural
Rights have established certain superior standards of law and justice that apply to all societies,
such as the duty to “act towards one another in a spirit of brotherhood,” not to discriminate on
the basis of race or color, the guarantee of personal liberty, the ban on slavery, the prohibition of
torture, the right to equality before the law, the right to effective legal remedies, to impartial
tribunals, to privacy, to own property, to periodic and genuine elections, to universal and equal
suffrage, and so forth. These standards were explained by cross-cultural consensus, but do not
depend on culture for their continuity. They are necessary effects to human nature, once the
“inherent dignity” of fellow human beings is to be accepted.

The purpose and value of comparative constitutional law arises, then, not from identifying these
fundamental requirements of a just legal order, which will be clear whenever human beings are
free to consider and openly to discuss the requisites of justice, without any coercion. The value
of comparative constitutional law arises rather from comparing the efficacy with which the many
various constitutional orders in the world realize and advance a just legal order, in the very
different political, cultural, regional, historical and other circumstances in which they find
themselves. Different societies face differing situations, but the human needs and capabilities
with they work do not differ very much. The benefit of comparisons is that they clarify the
similarities (and dissimilarities) of the surrounding circumstances, and provide those making
constitutional comparisons with inspiration to improve the institutions of their own legal order,
in the light of the experience of others.16

The purpose of comparative constitutional law, like all legal study, is a normative enterprise. It
establishes justice to advance the common good of the people. Many of the fundamental
requirements of justice and institutional structures that will advance and protect justice best have

16
Masnur Marzuki ,"Prospect of Constitutionalization of the Complaint Procedure in Indonesia; an Important
Lesson from South Africa:A Brief Synopsis of the Study, ACADEMIA.EDU (MAY 28, 2019, 11:00AM)
https://www.academia.edu/5111528/_Prospect_of_Constitutionalization_of_the_Complaint_Procedure_in_Indon
esia_an_Important_Lesson_from_South_Africa_A_Brief_Synopsis_of_the_Study_.
9
been well known for thousands of years. Legal science is intimately connected with human
nature, which does not change, and is well understood by all human beings. The comparative
study of constitutional law provides those who undertake it with better comprehensions into
where their own existing legal institutions fall short in realizing universal goals, and how to
improve them.

 PRACTISE OF COMPARATIVE CONSTITUTIONAL LAW:

There is no doubt that comparative constitutional law—the systematic study of constitutional

law, jurisprudence and institutions across polities—has enjoyed a certain renaissance since the
mid-1980s. Constitutional courts worldwide increasingly rely on comparative constitutional law
to frame and articulate their own position on a given constitutional question. This trend has been
described as “a brisk international traffic in ideas about rights,” carried on through advanced
information technologies by high court judges from different countries.17

Indeed, “constitution interpretation across the world is usurping associate degree more and more
cosmopolitan character, as comparative jurisprudence involves a central place in constitutional
assessment. This development is especially evident with regard to constitutional rights
jurisprudence. In its landmark ruling determining the unconstitutionality of the death penalty, the
South African Constitutional Court examined very well pertinent jurisprudence from Botswana,
Canada, Germany, Hong Kong, Hungary, India, Jamaica,Tanzania, the United States, Zimbabwe,
the European Court of Human Rights and therefore, the United Nations Committee on Human
Rights. Even the US Supreme Court has hesitantly joined the comparative reference trend. In two
recent cases - Lawrence v. Texas and Roper v. Simmons - the Court’s legal opinion cited foreign
judgments in support of its decision.18

At a more ground level, constitutional practices in a given society might be improved by

emulating certain constitutional mechanisms developed elsewhere. Similarly, comparative

17
https://watermark.silverchair.com/.
18
Ran Hirschl, Comparative Constitution, SCRIBD (FEB 25th, 2019, 12:05PM)
https://www.scribd.com/document/45873957/Comparitive-Constitution-Ran-Hirschl.
10
constitutional law has been offered as a guide to constructing new constitutional provisions and
institutions, principally in the context of “constitution”.

Most written constitutions adopted after World War II (1939–1945) feature five main elements:

(1) Provisions establishing the principal institutions of government, that define their
prerogatives and the relationship among them, and establish rules and procedures for their
renewal;

(2) Provisions that establish the distribution of powers of government over the polity’s territory;

(3) List of protected rights and liberties of the polity’s citizens and residents;

(4) An amendment formula that allows for the possibility of amending the constitution, and
states the conditions to which such amendments must meet; and finally

(5) Provisions that establish an independent judiciary equipped with the authority to review
executive practices, administrative decrees, and laws enacted by legislatures, and to declare these
unconstitutional on the grounds that they conflict with fundamental principles protected by the
constitution. Where certain written constitutions elaborate in great detail on each of these five
elements, other constitutions are relatively short, and feature generic statements or broad
wording.

One of the main reasons for the revitalization is the global union to constitutional supremacy; a
concept that has long been a major pillar of American political order, and that is now shared, in
one form or another, by over one hundred countries across the globe.19

Finally, a controversial constitutional issue in one society may be a non-issue in another society
and a certain issue may be framed differently in different polities. For example, reproductive
freedom may be framed mainly as a clash of rights (e.g. in the US), as a reflection of the status of
the historically influential church (e.g. in Poland), or as a conflict between national preferences

19
Ran Hirschl, The Judicialization Of Mega-Politics And The Rise Of Political Courts, SSRN (FEB 26th, 2019 11:00AM)
http://ssrn.com/abstract=1138008.
11
and supra-national norms (e.g. the compatibility of Irish abortion laws with provisions of the
European Convention of Human Rights). At any rate, the proliferation of constitutionalism and
comparative constitutional law has gradually eroded the status of American constitutional law as
the ultimate source for constitutional borrowing. The groundbreaking ideas of the American
founding fathers are still studied widely worldwide.20

Brown v. Board of Education,21 is still considered a constitutional event of near-mythical

proportion. However, the prime status of American constitutionalism has given way to a more
balanced, multi-source enterprise of comparative constitutional law.

 BENEFITS OF COMPARATIVE CONSTITUTIONAL LAW:

“Comparative Constitutional Law identifies four benefits:

1) Comparison gives exposures students to a range of models that illuminate the meaning or
foundation of constitutional justice in our time;

2) Comparison enhances the power of judgment by enjoining students to differentiate the

accidental, particularistic, or autobiographical elements of constitutions from their more general,
inclusive, or universalistic components;

3) Comparison shows that no one is exceptional and that, with respect to human rights and
democratic governance, all have much in common with other constitutional democracies, and

4) Comparison is done to observe differences, and that is how with reference to many contrasting
constitutional currents, all might wish to reassess our own fundamental law.

CONCLUSION:

The constitutional law and practice of countries such as Germany, Canada, or South Africa are
progressively used as a source of inspiration for jurists worldwide.

20
ibid.
21
(1954).
12
Comparative Constitutional law narrates to the study, practice, interpretation and administration
of laws set forth by a country’s constitution. In the US, for example, the US Constitution is the
foundation for all constitutional law. Any legal subjects that deal with any constitutional rights or
violations become part of constitutional law.

Experts in constitutional law may take part in cases that seem to be in clear violation of the
constitution. Further, constitutional law experts may also participate to change or amend existing
laws if they appears to conflict with a nation’s views.

The scope of Comparative Constitutional Law should be extended to embrace the relationship
between constitutionalism and nationalism in multinational scenario. This will help to improve
the loopholes that are present in any present form of Government of a country. Interpretation of
various constitutions assists to point out the differences between two or more types of
Constitutions and therefore, a proper constitutional Government will be established.

For this purpose, three steps are essential:

• The modern state need to engage in a process of nation-building, which is designed to produce
a degree of common national identity across the entire territory of the state, to be shared by all of
its citizens.

• Many states also consist of national minorities, whose members who formed complete,
functioning societies on their territory, with a large degree of self-rule, prior to their
incorporation into the larger state. Multinational states are often the legacy of conquest and
empire (e.g. Russia) or voluntary federation or union (e.g. Switzerland).

• Ethno national minorities will give a back for nation-building efforts, and engage in minority
nation-building as a defensive response. In many cases (e.g. Scotland), minority nationalism is a
reply to the centralization of political and legal power, which had the impact of shifting power
away from minorities.

13
In other cases (e.g. Spain), it is a answer to linguistic nation-building, which weakens the ability
of linguistic minorities to fully participate in economic and political life. Moreover, the historical
record shows that it is inexperienced to assume that national minorities will voluntarily
assimilate.

14