Shri Vaishnav Institute of Law

Comparative Constitutional Law Assignment

Topic: SCOPE OF COMPARATIVE CONSTITUTIONAL LAW IN LEGAL

STUDIES

Third year\ 6th semester

Submitted To:-

Doorva Juaria Ma’am

Submitted By:-

Lakshya Tiwari
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 worthpursuing in under-analyzed
jurisdictions.

Key Words:- comparative legal analysis, interdisciplinary interest, 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. 1The 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 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.

1
[Link] : COMPARATIVE CONSTITUTIONAL LAW, 155 (Justice G B Patnaik, Yasobant Das & Rita
Das eds., 3 rd Edition, LexisNexis 2014).
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 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 2necessity 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
[Link].
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." 5Further, 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

3
supra note 3.

6
supra note 3.
 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 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

7
supra note 3.
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 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. 9The 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. 11In 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

8
Vicki C. Jackson and Mark Tushnet, Defining The Field of Comparative Constitutional Law,
[Link] 288 (Oct 19th 2003, 10:04AM)
9
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)
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. 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

14
Grutter v. Bollinger, U.S. (2003).
15
Supra note 8
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.”

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 Commonwealth Law Review Journal \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?

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 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

16
Masnur Marzuki ,"Prospect of Constitutionalization of the Complaint Procedure in Indonesia; an
Important Lesson from South Africa:A Brief Synopsis of the Study,
“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 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;

17
Ran Hirschl, Comparative Constitution,
(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.19Finally, 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
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

19
Ran Hirschl, Comparative Constitution,
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.

20
ibid.
21
(1954)
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.
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. In other cases (e.g.
Spain), it is a answer to linguistic nation-building, which weakensthe 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.