Unit 1

Question 1

how can comparative law be defined?

Answer 1

intellectual activity aimed at the identification, classification, explanation and evaluation of similarities and differences existing between selected constitutional systems

Question 2

what is a constitutional system?

Answer 2

set of fundamental norms that form the foundation of a legal and political order, typically at the national level.

Question 3

what are its historical origins?

Answer 3

Ancient Greece- Aristotle compared 158 polis-> good government. then machiavelli and Montesquieu- good government

Question 4

Who are the subjects normally engaging with comparative constitutional law?

Answer 4

scholars, constitutional adjudicators and constitutional legislators

Question 5

What
is the difference between an observer and a participant perspective?

Answer 5

the observer perspective emphasizes understanding and theorizing (scholarly detachment), while the participant perspective is more pragmatic and instrumental, focused on solving immediate problems within a political or legal framework.

Question 6

Illustrate the educational and theoretical purposes of comparative constitutional
law.

Answer 6

improving knowledge, theoretical and critical purposes and practical purposes

Question 7

In which ways can foreign legal sources and comparative methodology be employed as resources in constitutional interpretation?

Answer 7

1. they can be mentioned to support a solution already achieved under national law;
2. they can be mentioned and distinguished in order to explain the peculiar nature of the domestic constitutional system;
3. they can be relied upon to justify the need for the domestic constitutional system to align with a broader consensus emerging at global or regional level

Question 8

How can foreign legal sources circulate?

Answer 8

By Reputation and Influence, by imposition and by conditionality.

Question 9

In which sense can they operate as
positive or negative models?

Answer 9

Positive Models: Foreign legal frameworks are beneficial when they align with a country’s values and needs. Negative Models: Unsuitable models may fail due to historical or cultural incompatibilities.

Question 10

What are the outcomes of circulation?

Answer 10

adoption, rejection and adaptation

Question 11

Is constitutional law an easy candidate to legal transplants?

Answer 11

depends on how embedded they are.

Question 12

illustrate the universalist approach to ccl

Answer 12

Focus: Identify universal principles of governance and justice.
Example: Aristotle’s study of city-state constitutions aimed to extract general theories of good governance.
Strength: Offers global applicability of ideas.
Limitation: Ignores cultural or historical specificities.

Question 13

illustrate the historical approach to ccl

Answer 13

Focus: Trace the evolution of constitutional principles.
Example: The principle of proportionality originated in Prussian administrative law, became central in German constitutional law, and spread globally.
Strength: Contextualizes institutions within their historical trajectory.
Limitation: May overemphasize past precedents, ignoring contemporary realities.

Question 14

illustrate the functionalist approach to ccl

Answer 14

Focus: Understand how different systems solve similar problems.
Example: Judicial review differs globally:
Decentralized in the US (all courts can review constitutionality).
Centralized in Germany (only the Constitutional Court handles such cases).
Strength: Practical approach to problem-solving.
Limitation: May neglect cultural and political nuances.

Question 15

illustrate the contextualist approach to ccl

Answer 15

Focus: Emphasize the specificity of each constitutional system.
Example: Montesquieu’s idea that laws should fit a country’s “spirit” (culture, history, geography).
Strength: Recognizes embeddedness of institutions.
Limitation: Can hinder the adoption of potentially useful foreign models.