Unit 1 Flashcards
What is comparative constitutional law?
How can comparative constitutional law be defined?
Comparative constitutional law is an intellectual activity. It is a scientific discipline aimed at classifying, explaining and assessing constitutions. The main aim is to get knowledge from comparative research of constitutions.
Who are the subjects normally engaging with comparative constitutional law? What is the difference between an observer and a participant perspective?
Subjects that engage with comparative constitutional law are scholars, constitutional legislator and constitutional adjudicators.
Scholars use this discipline to accumulate knowledge and observe different constitutional models. They can use their knowledge to assess or provide recommendations.
Constitutional legislators might use comparative constitutional studies when designing a new constitution. They can look for inspiration and take notion of successes and pitfalls of other state’s constitutions.
Constitutional adjudicators might use comparative constitutional law in order to help them or support their decision. They might look at foreign constitutions and observe how they solved similar constitutional problems.
Observer perspective is the one of the scholars. Their objective is simply to observe without including personal beliefs or needs. They simply want to obtain knowledge without any prejudice (because prejudice could harm the quality of obtained knowledge).
Participant perspective is the one of the constitutional legislators and adjudicators. They are searching through foreign constitutions with certain prior intention. They are looking for solution and comparative law is used as a practical tool that should help them achieve their objective.
Illustrate the educational and theoretical purposes of comparative constitutional law.
Educational purposes are those of understanding better constitutions. It is important to realise that there are other solutions or simply alternatives, that are also functional. Different classifications can also be elaborated after thorough research.
Theoretical purposes are creating theories, finding universal concepts (the best way of establishing a government), debunking hegemonic tendencies or studying transferability of constitutional institutions.
How can foreign legal sources circulate? In which sense can they operate as positive or negative models? What are the outcomes of circulation?
Foreign legal sources can circulate thanks to reputation, imposition or conditionality.
If a constitution has a good (or bad) reputation, foreign constitutional legislators can get inspired from working characteristics of given constitution.
Especially during colonisation western countries imposed constitution on colonised states, because the legal system wasn’t developed. Imposed constitutions or constitutional institutions have a high risk of being rejected or not being effective.
Typically when country wants to access some international community or wants to benefit from one, it has to meet certain conditions in order to be able to take part in international matters. These conditions sometimes need to be incorporated into the constitution.
Positive when country gets inspired by successful foreign legal framework to issue own constitution or constitutional norms. Foreign constitutional can be cited to promote progressive ruling (family law, gender reforms etc.)
Negative when referring to foreign legal framework as an example what not to do or what to avoid. Also the failures of foreign systems can serve as lessons for domestic policymakers.
Outcomes of circulations can be adoption, rejection and adaptation. Adoption means that the same exact idea is simply transplanted. Rejection is the exact opposite, model that was tried to be implemented was rejected before coming to function. And adaptation is the most used way, that means that foreign source is adapted to the circumstances of a different constitutional system, the idea is the same however the implementation can differ.
Is constitutional law an easy candidate to legal transplants?
No, since constitutions are closely connected to cultural, historical, social background of each country, it is really hard to transplant concepts from one constitution to other.
French philosopher Montesquieu in 18th century believed constitutional institutions are basically untransplantable, because of the differences between each state and has a high risk of failure. In his days however even geographical factors were in play.
Scholar Otto Kahn-Freund said that there’s a inverse correlation between the level of transplantability and level of embeddedness of a constitutional institution.
But overall the possibility to transplant a certain constitutional institution highly depends on specific legal system and the institution.
Illustrate the (universalist, historical, functionalist and contextualist) approach to comparative constitutional law.
The universalist approach tires to identify universal principles, that can be applied universally, regardless of nation’s cultural, historical, social context. The objective is to find the universal principles of a good government through filtering different constitutions. It can be used e.g. to incorporate fundamental human rights into constitutions.
The historical approach focuses on the historical evolution of a constitution. They are trying to find out what were the influences and historical moments, that shapes the constitution the most.
Functionalist approach has a broad spectrum of uses. Has a mainly descriptive view of constitutions. Compares constitutions and how they respond to certain problematics or explores the variety of constitutional institutions. It focuses on practical function of constitutions (courts, legislature, executive). Functionalist approach might be used to compare parliamentarian and presidential systems or might explore the different solutions of judicial review of constitution.
Contextualist approach is seeking for peculiarities of a constitutional system and the reasons and developments behind it. This method specifically emphasised the differences between each constitutional system and therefore is sceptical toward constitutional borrowing.
In which ways can foreign legal sources and comparative methodology be employed as resources in constitutional interpretation?
Foreign sources can be used as a support for domestic solutions, to support solutions already established and only searching for broader strengthening of the reasoning and legitimacy.
Foreign sources can be cited to highlight the special domestic constitutional features. By contrasting domestic provisions and precedents with those of other jurisdictions can highlight the measure established as corresponding to unique background of that constitutional system.
Foreign law can also be invoked to justify alignment with a broader consensus. This argument can support a domestic decision with arguments that a particular interpretation of a domestic constitutional provision aligns with a broader international or regional consensus. This approach can be particularly persuasive in areas such as human rights, where international norms and standards have gained significant recognition. This argument also can be used the other way a round as a country does not want to align with specific countries because of ideology or political background.
In USA the use of foreign sources remains controversial. While some justices, such as Justice Breyer, advocate for considering foreign legal precedents as valuable sources of insight, others, like Justice Scalia, have expressed strong opposition, arguing that foreign law is not binding on US courts and can be subject to manipulation and cherry-picking.
In Europe on the other hand, courts generally adopt a more receptive attitude towards foreign legal sources. . The CJEU and ECHR have consistently incorporated foreign law and comparative methodology in their decision-making processes.
