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Notes
I borrow this expression from Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press 2014) 151–191. The author defends an expanded conceptualisation of comparative constitutionalism which transcends a purely textual focus and takes stock of ‘the tremendous descriptive depth and explanatory potential of the social sciences,’ especially comparative politics (page 191).
Despite being a long-established practice, the study of comparative law has mostly focused on the English-speaking world, both for practical (being the circulation of legal arguments a constitutive characteristic of the Commonwealth) as well as for political reasons (the tertium comparationis would usually need to comply with certain economic and political coherency requirements). In recent times, there has been a distinct effort towards expanding the existing literature, to facilitate the emergence of comparatively less known legal systems. See eg, Sunil Khilnani, Vikram Raghavan and Arun Kumar Thiruvengadam (eds), Comparative Constitutionalism in South Asia (Oxford University Press 2012); Rosalind Dixon and Tom Ginsburg, Comparative Constitutional Law in Asia (Edward Elgar 2014); Rosalind Dixon, Tom Ginsburg and Adem Kassie Abebe (eds), Comparative Constitutional Law in Africa (Edward Elgar 2022).
The book is an expansion of a set of critiques and ideas formulated in an earlier journal article. Francois Venter, ‘Rethinking the Language of Constitutional Comparison’ (2017) 33(1) South African Journal on Human Rights 72. Indeed, many of the points explored in the The Language of Constitutional Comparison were already described in the article, such as the need to disclaim subjectivity in scholarly writing or the pressing concerns over an expanding disconnect among constitutional law and the political discourse.
Rather emphatically, Venter comments that ‘all knowledge, be it obtained inductively by naïve or conscious empirical observation, or deductively by means of logical reasoning and systematic ordering, is gained by means of comparison […]. How, for instance, would a lawyer be able to distinguish between judicial review and appeal, between domestic and international regulation, between criminal and civil procedure, between personal and political fundamental rights, without comparison?’ Francois Venter, The Language of Constitutional Comparison (Edward Elgar 2022) 221.
Two are the basic assumptions behind the usefulness of comparing constitutions across polities, which have fuelled unending discussions. First, difference is an unavoidably relative concept, which exists only through comparison. The same rationale applies to differences between constitutions. Second, on a functionalist note, the study of how different constitutions respond to similar societal issues may lead to a better understanding and/or improvements of one’s own structures. For a discussion, see Sujit Choudhry, ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74(3) Indiana Law Journal 819, 856–857. Once these foundational premises are accepted, comparative constitutionalism largely becomes a matter of methods. An insightful overview, from an American perspective, is provided in Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108(6) The Yale Law Journal 1225.
The pivotal importance of functionality in comparative law has long been discussed, since its early conceptualisation in Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (translated by Tony Weir, Clarendon Press 1998). Despite functionalism itself being an essentially contested concept, its various typologies in comparative constitutionalism share a typically socio-political connotation, in the sense that they all depart that from the basic assumption that similar constitutional structures should be understood as tentative regulations of similar societal problems. The comparison, thus, usually revolves around the functional capacity of the different normative options to address the relevant concern. See Ralf Michaels, ‘The Functional Method of Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford University Press 2006) 342. The pre-eminence of the functionalist approach in modern comparative constitutional studies is discussed in Vicki C. Jackson, ‘Comparative Constitutional Law: Methodologies’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 62–66.
Venter (n 4) 9.
Venter (n 4) 3.
Venter (n 4) 228.
Venter (n 4) 234.
Gunter Frankenberg, ‘Comparing Constitutions: Ideas, Ideals and Ideology—Toward a Layered Narrative’ (2006) 4(3) International Journal of Constitutional Law 439, 457–458. Referring to certain ‘structural properties’ of constitutions, the author comments: ‘[s]uch similarity at the surface, however, only characterizes the way polities dress for their appearance on the global theatre’s stage as secular and rule-of-law loving figures. Remarkable differences come into view, if the architecture of their constitutions is not read too schematically as a result of globalization. Such differences will appear, especially if one looks closely at the peculiar arrangements of the different building elements.’
Which Venter passionately labels as ‘orthodoxy,’ subscribing in large to the views expressed in Günter Frankenberg, ‘Authoritarian Constitutionalism: Coming to Terms with Modernity’s Nightmare’ in Helena Alviar García and Günter Frankenberg (eds), Authoritarian Constitutionalism (Edward Elgar Publishing 2018) 7–10; Günter Frankenberg, Comparative Law as Critique (Edward Elgar Publishing 2016) 13–16.
András Jakab, ‘What Can Constitutional Law Do against the Erosion of Democracy and the Rule of Law? On the Interconnectedness of the Protection of Democracy and the Rule of Law’ (2020) 6(1) Constitutional Studies 5, 16.
Venter (n 4) 155–160.
Venter (n 4) 160. The specialised studies on which the author grounds this reconstruction seem, however, insufficient to support the defended relation among imported electoral structures and poorly balanced politics. See Patrick Tandoh-Offin and Gbensuglo Alidu Bukari, ‘Towards a Less Contentious Electoral Outcome in Sub-Saharan Africa’ (2019) 2(2) African Journal of Public Sector Development and Governance 39; Elvin Shava and Shingirayi Florence Chamisa, ‘Cadre Deployment Policy and its Effects on Performance Management in South African Local Government: A Critical Review’ (2018) 37(1) Politeia 1.
It is beyond fitting to note here that the term ‘populism’ is not per se unequivocal. For a discussion, see Gábor Halmai, ‘Populism, Authoritarianism and Constitutionalism’ (2019) 20(3) German Law Journal 296, 296–298.
A pointing example on this is the pervasive influence of Confucianism in East Asian constitutionalism, which has led Bui Ngoc Son to proposing ‘a normative theory of mixed constitutionalism.’ Bui Ngoc Son, Confucian Constitutionalism in East Asia (Routledge 2016) 10–18.
In Japanese constitutional law, for instance the expression hochi kokka conveys a notion of the rule of law as the state’s preservation of the public space and protection of people from crime. Noriho Urabe, ‘Rule of Law and Due Process: A Comparative View of the United States and Japan’ (1990), 53 Law and Contemporary Problems 61.
Jackson (n 5) 55–66.
See Francois Venter, Constitutional Comparison: Japan, Germany, Canada & South Africa as Constitutional States (Juta 2000) 15–19.
Acknowledgements
I wish to express my gratitude to the two anonymous reviewers for their challenging comments on earlier drafts of this review.
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Lucherini, F. Francois Venter, The Language of Constitutional Comparison. Jindal Global Law Review 14, 123–128 (2023). https://doi.org/10.1007/s41020-023-00191-2
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DOI: https://doi.org/10.1007/s41020-023-00191-2