Comparative Constitutional Analysis Research Articles

A Global Comparative Constitutional Analysis of Natural Resources Protection

Abstract Natural resources are the foundation for all life on earth, which all living creatures depend on to exist. Thus, it is subject to many sorts of laws and policies. Globally, constitutions follow different approaches to dealing with their respective country’s natural resources, which are rooted in the diverging cultures, political, economic, and legal systems, as well as in the distinct historical developments of the diverse constitutional orders. Accordingly, the present contribution discusses the prominent similarities between the inclusion of provisions relating to ownership, exploitation and exploration, and the use of natural resources, be they renewable or non-renewable, but also notes the different perspectives adopted and methods of protection applied in the analysed countries’ constitutions. The countries discussed in this paper are South Africa and Chad; Brazil, Cuba, and Bolivia; India and Iran; Germany; and Australia. This paper begins by, firstly, defining ‘natural resources’ and delineating its overlapping concepts. Secondly, the framework for comparison of the analysed countries is set out. Thirdly, the countries selected are separately discussed. Lastly, the comparative analysis is presented with a few concluding observations.

A Comparative Constitutional Analysis of Natural Resources Protection

A Comparative Constitutional Analysis of Natural Resources Protection

Principle of Laicity and Religious Concepts. An Italian And Japanese Perspective

The present research analyses the principle of laicity, aiming to understand whether religious concepts can be introduced and positivised in a lay State, taking the Japanese and Italian Constitutions as case studies. The purpose is to understand how religious concepts, if positivised, can contribute to higher protection of fundamental rights. The first phase focuses on the definition of the concept of laicity by separating it from secularism. The second phase deals with the principle of neutrality and non-identification of the lay state towards the religious sphere, deepening the positivisation of religious concepts and their introduction into legal analysis, with particular attention to Habermas' studies on the translation of religious concepts into a universally accessible and independent language. The third phase carries out a comparative constitutional analysis focusing on the principle of laicity in the Italian and Japanese Constitutions to understand the different declinations the principle of laicity may take and the potential terrain for religious concepts to be introduced after an imperative translation into universal language independent of any religious interpretation.

Populist Constitutionalism in Brazil and Peru: Historical and Contextual Issues

Given populism's common practice in South America, the region provides a crucial case to identify populism as a prevalent strategy by different ideologies. The link between populism and constitutionalism is paramount because populist governments typically use constituent power and constitutional identity to reach political goals. This study aimed to provide a comparative constitutional analysis of the recent development of populism in Brazil and Peru. The first was the rhetoric and practices of Jair Bolsonaro's government in Brazil, whereas the second was Pedro Castillo's government in Peru regarding constitutional reforms and human rights issues. This comparison justified that Brazil and Peru are presidential republics where harsh political polarization shakes their societies. Bolsonaro and Castillo have anti-corruption discourses and support a new constituent process but present antagonistic economic views. This study was comparative in nature that used a qualitative approach, sourced from bibliographic and documentary research that included specialized literature on South American populism and constitutionalism and the government's plans and legislation. This study showed that both governments have difficulties executing their respective agendas on customs and constituent referendums due to governability problems and important features of the constitutional design, such as eternity clauses, judicial review, and constitutional rigidity. It concluded that the populist strategies of Bolsonaro and Castillo are different. Bolsonarism is antiliberal and promotes human rights regression, whereas Castillo's populism is conservative but democratic. In common, both face the coalitional presidentialism and constitutional protection mechanisms as constraints to putting their political goals entirely into practice.
 KEYWORDS: Authoritarianism, Constitutionalism, Fundamental Rights, Populism.

The Constitutional Role of Independent Fiscal Institutions in the Eurozone

AbstractThe new European economic governance has made the creation or reform of independent fiscal institutions (IFIs) compulsory, in particular for Eurozone countries. While these institutions have been subject to extensive investigation by the economic literature, a constitutional analysis of their prospective and actual impact on national legal systems is lacking. In fact, depending on their design and powers, they could alter the ordinary inter-institutional dynamics on budgetary decisions. IFIs could redress the marginalization of parliaments in budgetary procedures in so far as they are able to offer reliable and independent information from the executive, and should mechanisms of “comply or explain” be put in place. By contrast, in the event an IFI operates within the executive branch and is not autonomous in the exercise of its mandate, parliamentary accountability could be further jeopardized. IFIs could also affect democratic rule-making over the budget, should their technocratic determinations be able to replace those of the budgetary authorities. Through a comparative constitutional analysis and based on selected case studies—France, Italy, Spain, and the Netherlands—the article aims to assess the constitutional impact of IFIs on parliaments and on the problem of information asymmetry on the budget.

Expressions of Sovereign Power in the Roman Tetrarchy and the Byzantine Empire: A Comparative Constitutional Analysis

This working paper provides a comparative constitutional analysis of sovereignty within the Byzantine Empire and Roman Tetrarchy. Through comparing the structures of government and transitions of power within these regimes, this working paper concludes that sovereignty vested in the dominant tetrarch’s auctoritas within the Roman tetrarchy, with the other tetrarchs exercising a greatly lessened degree of influence. Whereas, in the Byzantine Empire, the transitions of power and focus on popular sovereignty ultimately resulted in sovereignty vesting in the res publica.

The forms, functions, and varieties of weak(ened) judicial review

Abstract The concept of “weak” judicial review is now a core concept in comparative constitutional analysis. Yet the relative weakness of judicial review will depend on a variety of factors, including the availability of formal mechanisms for legislative override or limiting courts’ jurisdiction, the difficulty of constitutional amendment, the scope of judicial review both in first- and second-look cases, and the actual practice of legislators and judges in a jurisdiction. The strength of judicial review is therefore not a true binary but rather a concept that spans multiple dimensions and a question of degree rather than kind. The desirability of weak as opposed to strong or even super-strong forms of review will likewise depend on a range of factors, which can and do vary across time and different contexts. This article thus aims to unpack the concept of weak-form review with a view to sharpening our understanding of both its internal complexity and relationship to questions of broader political context.

Comparative Constitutionalism: Challenges of Constitutional Sovereignty in Iran and Iraq

Constitutionalism has more than a century of history in the Muslim world. More recently, Iran and Iraq, two countries with populations comprised of Shi’a majorities with a strong presence in the layout of political power, appear to have embarked on divergent routes with regard to the formal blueprints of public authority. Yet as this research demonstrates, due to an absence of robust institutional arrangements and lack of efficient mechanisms of revision and entrenchment, comparable outcomes can be observed in the form of political systems that have consistently failed to uphold various elements of popular sovereignty, which the constitutions themselves claim to be endorsing. This study aims at providing a closer examination of important elements of popular constitutional sovereignty by examining key normative, institutional and procedural settings in both contexts to evaluate critically the constitutional arrangements in two prominent republican settings in the Muslim world. The author will argue that in both cases certain highlighted fundamental shortfalls could lead one to regard both texts as “sham constitutions”. This study draws upon theoretical principles of comparative constitutional analysis.

Empirical Legal Studies, Comparative Constitutional Law and Legal Doctrine: Bridging the Gaps

This article looks into the viability of approaches to engaging in empirical comparative constitutional legal analysis. Quantifying the words contained in constitutions, while by no means irrelevant, can only be an element in this. Their actual importance according to case law and other empirical data highlights the need for caution in drawing far-ranging comparative conclusions from such quantifications for constitutional legal systems. It is argued that the key phenomenon driving these systems can be found elsewhere: In the paradigmatic concepts of a particular system of legal scholarship, other epistemic communities, or society at large. However, while this phenomenon can be empirically studied, any meaningful study necessitates intimate knowledge of legal scholarship as the meaning of communicative symbols involved can strongly diverge from the paradigmatic concepts of (other) social sciences. Central and East European (cee) constitutional legal systems can be of special interest in this regard due to both close similarities and considerable variations of both positive law and the paradigms of legal scholarship and political thought. Ultimately, an empirical analysis requires a holistic and systematic approach to understanding constitutional systems, including positive law and the paradigms driving it analyzed with quantitative as well as qualitative tools. Otherwise, the push for empirical comparative constitutional legal research may thwart its goal of accurately depicting the observable world, and, in the case of quantitative analyses, can run counter to the goal pursued.

The Minimum Wage as a Matter of Tangible Human Dignity: A Comparative Constitutional Law Analysis

The right to human dignity has been applied to numerous employment issues: loss of reputation, privacy, sexual and psychological harassment.Human dignity has less often been invoked in litigation involving tangible working conditions such as the minimum wage. These questions have traditionally been dealt with by employment legislation rather than human rights law. This article argues that minimum wage issues are also a matter of human dignity. In this respect, the adequacy and sufficiency of minimum wage regulations could be assessed in the light of the right to human dignity. In particular, we will examine minimum wage regulations in Quebec (Canada) with regard to the right to human dignity as laid down in the Quebec Charter of Human Rights and Freedoms. In order to substantiate the relationship between the minimum wage and human dignity, we intend to make use of comparative constitutional law. We will draw on the interpretation and application of human dignity developed in international law as well as in four jurisdictions: Quebec, Canada, Israel and Germany. Although Quebec and Canadian case law has applied human dignity to work issues, they have not developed its application to tangible working conditions. By comparison, international law, together with Israeli and German law, have developed the tangible dimension of dignity more extensively. These sources of law may help address the lack of attention on the part of the Quebec courts to the tangible dimension of dignity at work. We then turn to the Quebec minimum wage regulations to evaluate their sufficiency and adequacy in the light of the right to human dignity.

A Comparative Constitutional Analysis on Environmental Protection under the Constitution

A Comparative Constitutional Analysis on Environmental Protection under the Constitution

Judicial Comparativism and Judicial Diplomacy

By global standards, the U.S. Supreme Court is unusual in a number of respects, but one of its most distinctive characteristics is its reluctance to engage in comparative constitutional analysis. Much has been said on the normative question of whether and in what ways the Court ought to make use of foreign constitutional jurisprudence. Rarely, however, do scholars broach the underlying empirical question of why some constitutional courts make greater use of foreign law than others. To identify the reasons for which courts engage in comparativism, a behind-the-scenes investigation was conducted of four leading courts in East Asia – the Japanese Supreme Court, the Korean Constitutional Court, the Taiwanese Constitutional Court, and the Hong Kong Court of Final Appeal. The results of this investigation highlight the crucial role of institutional and resource constraints in shaping judicial behavior but also pose an unexpected challenge to traditional conceptions of the role and function of constitutional courts. Evidence from interviews conducted with numerous justices, clerks, and senior administrators suggests that a combination of mutually reinforcing structural factors create the conditions necessary for comparativism to thrive. The first factor is institutional capacity. A court that lacks any institutional mechanisms for learning about foreign law, such as the recruitment of law clerks with foreign legal expertise or the use of researchers who specialize in foreign law, is unlikely to make more than sporadic use of foreign law. The second factor is a supportive system of legal education. Even the most elaborate of institutional mechanisms for facilitating comparativism is unlikely to be effective unless it is backed by a system of legal education that produces an adequate supply of lawyers with both an aptitude and appetite for comparativism. Investigation of the reasons for which courts engage in comparativism also reveals a hidden underlying phenomenon of judicial diplomacy. Unlike other judicial practices such as textualism or originalism, comparativism is not merely a means by which judges perform legal and adjudicative functions; it can also be a form of diplomatic activity. When constitutional courts demonstrate mastery of foreign law or host foreign judges, their goals may not consist exclusively, or even primarily, of writing stronger opinions or winning over domestic audiences. They may also be competing with one another for international influence or pursuing foreign policy objectives, such as promotion of the rule of law and judicial independence in other countries. The concept of judicial diplomacy helps to explain why constitutional courts engage in a number of practices that are only tenuously related to the act of adjudication. Although the U.S. Supreme Court rarely practices constitutional comparativism, it is an active practitioner of judicial diplomacy in other forms.

Can you tell when an illiberal democracy is in the making? An appeal to comparative constitutional scholarship from Hungary

As long as the search for the global constitution remains an aspiration of comparative constitutional scholarship, the ability to identify trends and forces that drive constitutions away from commonly accepted minimum standards should be a matter of special concern for practitioners in the field. Recent Hungarian constitutional developments offer a helpful litmus test for reflecting on the difficulties comparative constitutional law analysis faces when tackling the gradual degradation of a constitutional regime. This article argues that routine comparative constitutional law analysis is prone to overlook symptoms of gradual constitutional decline and that strong confirmation bias steers analysis towards seeing dialogue where defiance drives local actors. As a result, comparative analysis may overlook the building of a constitutional regime in which constitutional constraints on the exercise of political power evaporate, signs which point to clear departures from the global fold. The article demonstrates that comparative constitutional analysis has the potential to detect the gradual decline of a constitutional system, provided that its practitioners are keen to reach beyond their traditional comfort zone and engage with local oddities and discord as formative forces in national and supra-national constitutional developments.

Methods of Interpreting Competence Norms: Judicial Allocation of Powers in a Comparative Perspective

The comparative constitutional analysis of federalism is particularly complex. On the one hand, “[e]ach federal bargain is in important respects unique to the parties' situation,” in contrast to constitutional provisions asserted to guarantee fundamental rights. On the other hand, “provisions concerning federalism may have different historical meanings in a particular polity, tied in different ways to the political compromises.” In addition, the federal system relies on an “interrelated package of arrangements.” Therefore, no element should be considered isolated from other elements of the federal compromise. As a consequence, in order to compare federalism issues it may be necessary to evaluate “the entire interrelated structure.”

European Standards for the Rule of Law and Independent Courts

Independent adjudication as a cornerstone of the rule of law has attracted increasing attention at the European level over the past decades. Despite its general recognition in various international legal instruments there is, however, an ongoing search for its concrete meaning. Recent documents adopted under the auspices of the Council of Europe (CoE) have tried to specify standards for the organization of judicial administration. Unfortunately, however, some of these documents exhibit flaws and misconceptions in the conceptualization of judicial independence. This article identifies these imperfections and argues that future standardsetting on judicial independence in Europe should direct more attention to comparative constitutional analysis and to experience gained in the course of judicial reforms in the Council of Europe's member states. It advocates a less rigid approach to structural issues and concludes with recommendations for future Council of Europe initiatives.

Remembering Bill Niskanen: pursuing economics as a public science in the service of liberty

This short essay is a memorial piece about William A. Niskanen (13 March 1933–26 October 2011). The essay starts with his time at the University of Chicago in the mid-1950s, and gives most attention to his contributions to public choice. Especial attention is paid to his Bureaucracy and Representative Government, which opened vast territory for subsequent analytical exploration. A good deal of attention is also paid to his Autocratic, Democratic, and Optimal Government because this work both conveys his interest in comparative constitutional analysis and is useful for illustrating the strengths and weaknesses of his approach to this material.

The Abolition of the Mandatory Death Penalty in Africa: A Comparative Constitutional Analysis

The Abolition of the Mandatory Death Penalty in Africa: A Comparative Constitutional Analysis

Remembering Bill Niskanen: Pursuing Economics as a Public Science In The Service of Liberty

This short essay is a memorial piece about William A. Niskanen (13 March 1933- 26 October 2011). The essay starts with his time at the University of Chicago in the mid-1950s, and gives most attention to his contributions to public choice. Especial attention is paid to his Bureaucracy and Representative Government, which opened vast territory for subsequent analytical exploration. A good deal of attention is also paid to his Autocratic, Democratic, and Optimal Government because this work both conveys his interest in comparative constitutional analysis and is useful for illustrating the strengths and weaknesses of his approach to this material.

Preventative Detention of Terrorist Suspects in Australia and the United States: A Comparative Constitutional Analysis

Since the September 11 terrorist attacks, the United States and Australian governments have asserted that the threat of terrorism requires the adoption of preventative detention strategies to authorize the arrest and detention of terrorists before they carry out their horrific acts. The two countries' approaches to preventative detention, however, have been distinct. In the United States, the Bush Administration has adopted pretextual measures that authorized the preventative, and potentially indefinite, detention of terrorist suspects as enemy combatants or as material witnesses. In Australia, Parliament placed preventative detention directly into its Criminal Code, authorizing the imposition of preventative detention and control orders in cases of terrorism. This Article examines and compares these unique preventative detention strategies employed by the U.S. and Australia in the war on terrorism, and analyzes their constitutionality in light of the U.S. Supreme Court and Australian High Court precedent addressing administrative detention. In the United States, the Supreme Court, armed with the Bills of Rights, has been more assertive than its Australian counterpart in striking down detention schemes which authorize indefinite regulatory detention without charges. Nevertheless, the preventative detention strategies employed by the United States are far more intrusive of individual liberties than the Australian legislative model. Yet, while the Australian measures incorporate more procedural protections and safeguards from abuse than their U.S. counterpart, and therefore are the more favored approach, neither scheme is consistent with the fundamental principles and values underlying both the U.S. and Australian systems of criminal justice and due process.

“Making Public Law, ‘Public’: An Analysis of the Quebec Reference Case and its Significance for Comparative Constitutional Analysis”

The Supreme Court of Canada's advisory opinion inReference re Secession of Quebec, 1998(also known, more simply, as the “Quebec reference case”) has been the subject of much interpretation and comment, because of its obvious implications for the future of Canada.1However, it offers an arguably wider opportunity to consider the role of the judiciary within a liberal democracy. The professional nature of the legal process and its practitioners often has made legal and judicial institutions, to most of the public, distant and alien components of the political system. The technical aspects of many areas of law (such as contracts, torts, and civil procedure) may, in fact, make this area of public concern seem unapproachable to the average citizen; indeed, some legal practitioners may prefer that the law remain that way. That mystique often is transferred to the realm of constitutional law, where the use of technical terms (including Latin words and phrases) may serve, intentionally or not, to insulate legal arguments and proceedings from public scrutiny.2