Rethinking the language of constitutional comparison

Abstract

While constitutional comparatists may be talking the same language while saying (or thinking) different things, the significance of constitutional communication and more importantly of comparative endeavours may suffer seriously under unarticulated conceptual confusion. It has become important, if not essential in this era of escalating trans-nationalism, globalisation and comparativism, to confront the reality of the variance of meaning hidden under identical or homonymic constitutional terminology. Avoidance of this issue quietly begets confusion in the ever-increasing international and domestic legal discourse. The success of liberal theory in establishing the terminological standard for constitutional language is addressed before the conceptual foundations of the popular phrase ‘we, the people’, the social contract, the state, democracy, sovereignty, the rule of law and constitutional review jurisdiction are briefly probed. With reference to certain paradoxes in constitutional thinking and explanations for entrusting authority to the state, the epistemological challenges facing constitutional comparatists are addressed, followed by a suggestion for finding a measure of relief from the conceptual confusion by means of a comparative instrument. Identification of the terminological difficulties reveals the need for renewed investigation into a range of fundamental issues, explicitly approached from divergent points of departure.