Comparative constitutional law as a window on democratic institutions

Abstract

Post-World War II, much of international law and comparative law has been directed to the question of securing human rights. As rights jurisprudence developed, so too did a focus on national and international courts as the source of the basic guarantees owed to citizens by all states. As a result, much of comparative constitutional law turned to a search for universal commands based either on human rights law or socio-economic rights deemed essential for civilized existence. Also following the war came another institutional development, perhaps less noted, yet of great significance, particularly for the democracies that emerged after the fall of the Soviet Union. The postwar model of strong constitutional courts, modeled on Germany and Italy, has been a linchpin of newly minted and frequently fragile democracies. Unlike the human rights concerns, the role of these courts in stabilizing democracies has been less examined. The aim here is to outline an approach to comparative constitutional law that is court-centered but not rights-oriented. A focus on the institutional role that courts can play in weak democracies allows a comparative overview without trying to mandate the resolution of particular cases according to acontextual abiding principles. In this overview, I highlight four questions that comparative constitutional analysis may elucidate, without in any conclusive way trying to resolve these issues in this short presentation. The four are: 1) establishing the role of new constitutional courts and their powers of judicial review; 2) how the role is used in new constitutional democracies; 3) how courts survive confrontations with political power; and 4) the prospects for success of court-centered constitutionalism as a strategy to protect democracies.