Comparative Constitutional Law Research Articles

Comparative Constitutional Design: Northern Stagnation, Southern Innovation

It is hard to overstate the intellectual renaissance of comparative constitutional law over the last two decades. And yet, despite this tremendous renaissance, some challenges persist. This article focuses on one such challenge: the tendency of comparative constitutional law to draw on a small number of "usual suspect" jurisdictions based in the Global North. This establishes an overarching presumption of a supposed one-way flow of new constitutional ideas from the Global North to the Global South, but many of the most daring and innovative constitutional experiments vis-a-vis climate change, urbanization, and democratic renewal have in fact taken place in the Global South. This article accordingly argues that the Global South offers a valuable arsenal of novel constitutional design options that deserves more scholarly interest and attention.

Privacy and the City: How Data Shapes City Identities

Abstract This article bridges comparative constitutional law with research inspired by city leadership and the opportunities that technology brings to the urban environment. It looks first to some of the causes of rapid urbanization and finds them in the pitfalls of antidiscrimination law in federations and quasi-federations such as the United States and the European Union. Short of achieving antidiscrimination based on nationality, the EU has experimented with data privacy as an identity clause that could bring social cohesion the same way purportedly freedom of speech has done in the US. In the City however, diversity replaces antidiscrimination, making cities attractive to migrants across various walks of life. The consequence for federalism is the obvious decline of top-down or vertical, state-based federalism and the rise of legal urbanism whereby cities establish loose networks of cooperation between themselves. These types of arrangements are not yet a threat to the State or the EU but might become such if cities are increasingly isolated from the political process (e.g., at the EU level) and lack legal means to assert themselves in court. City diversity and openness to different cultures in turn invites a connection to new technologies since unlike antidiscrimination that is usually strictly examined on a case-by-case level, diversity can be more readily computed. Finally, the article focuses on NYC and London initiatives to suggest a futuristic vision of city networks that instead of using social credit score like in China, deploy data trusts to populate their urban environments, shape city identities and exchange ideas for urban development..

Current Trends in the use of International Instruments in Ethiopian Court Decisions: Potential Lessons for Comparative Constitutional Law

Comparative law in general and comparative constitutional law in particular is a thriving field of legal scholarship in many states. The basic idea of investigating and studying the norms and institutions of other societies has been used to draw good practices and lessons that can assist in resolving contemporary political, social and legal problems in a particular society. While it is true that the use of comparative law in domestic jurisdictions should be socially and culturally grounded, it has been instrumental for developing optimal normative standards in many states. This includes an increasing academic interest to understand the normative and institutional challenges of different polities in order to entrench constitutional democracy and enhance the protection of fundamental rights. Nevertheless, there is also a significant misconception and overstated criticism on the use of comparative law by many scholars. This is all the more evident when it comes to the legal practice in Ethiopia. In this article, I analyze the different arguments presented for and against the use of the comparative method, and argue that there is a continued relevance of comparative constitutional law in Ethiopian legal practice. The fledgling jurisprudence and growing reliance of Ethiopian courts on international human rights law in some of their cases is testament to the continued relevance of international and comparative law in Ethiopia.

Global Patterns of Constitutional Judicial Review Systems: Two Major Models of Constitutional Judicial Review in the World

Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models. Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models.

Constitutionalizing dissent: The universe of opposition rules in African constitutions

Abstract Constitutions are the most important legal foundation of politics. At the same time, the existence of a viable parliamentary opposition has been regarded one of the most distinctive characteristics of democracy. Bringing the two perspectives together, the principle of opposition can be constitutionalized to gain the highest status. Importantly, we refer to norms recognizing the opposition as such. Such counter-majoritarian rules are distinct because they empower opposition forces irrespective of their seat share and explicitly acknowledge that power should not be monopolized. While our subject has attracted little interest from comparative constitutionalists, it is too important to be overlooked. This is particularly true for autocratizing regimes where incumbents seek to use legislative lawfare to repress their opponents. Empirically, the study focuses on Africa, which proves revealing for various reasons. Among others, it addresses the critique that constitutional law studies often concentrate on usual suspect cases used to reveal purportedly universal insights. Our exercise in comparative constitutional law leads to two main conclusions that go beyond the continent. First, while we find a high number of opposition-related rules, the variation in design details and scope suggests that referring to the principle of opposition in an abstract manner is somewhat obscuring. And second, the obvious virtues of constitutionalizing dissent face noteworthy pitfalls since pertinent rules can lack legal clarity and even suppress dissent. Hence, the dividends of nominally democratic rules might be smaller than expected even if constitutional designers sincerely intend to fully uphold them in practice.

From “Living Constitutionalism” to “Zombie Apocalypse”. Valery Zorkin, the Constitutional Court and Russian Authoritarianism

Abstract The 2020 constitutional amendments marked a turning point for Russian constitutionalism. The Constitution finally lost its limiting function and the Constitutional Court lost significant power. The long-serving Chairman of the Russian Constitutional Court, Valery Zorkin, however, remained in power and continues to guarantee authoritarian legality and approval for Putin through favorable rulings, his theory of state and law, and support for the constitutional amendments in 2020. Over the years, Zorkin has adapted to the increasing authoritarianism of the Putin regime. This is all the more remarkable given that Zorkin was a strong defender of legalism and opposed Boris Yeltsin’s power grab in 1993. The figure of Zorkin can help us explain the development of Russian constitutionalism during the last 30 years and the poses questions for comparative constitutional law.

The Comparative Constitutional of Democratic Backsliding: A Report on the State of the Field

There has been a crisis in the modal forms of liberal constitutionalism that emerged as a default design choices for political systems across Europe and North America in the wake of World War II. Central to the crisis have been institutionalized assaults on democratic institutions, often conducted with legal tools. This article reviews the extensive literature in American comparative constitutional law on the role that legal institutions play in the process of democratic backsliding. Drawing on a range of comparative experience, it draws attention to questions of constitutional amendment rules; entrenched protection for rights of free speech and association; term limits and other protections of election integrity; and the constitutional viability of an autonomous bureaucracy and ‘fourth branch’ institutions designed to check the abuse of executive power.

Comparative Constitutional Law: Reflection of a Field Transformed

Comparative Constitutional Law: Reflection of a Field Transformed

Between Resistance, Convergence and Engagement: Comparative Constitutional Law and Constitutional Migrations

Resumo O tema das transferências, transplantes ou migrações constitucionais vem, com a abertura dos constitucionalismos ao âmbito internacional, sendo objeto de grandes discussões. Neste contexto, a reflexão sobre algumas ideias formuladas por alguns autores anglófonos pode ser relevante para o desenvolvimento da discussão no Brasil, sobretudo o conceito de migração, que permite a identificação de maiores nuances do que a noção de transferências ou transplantes. O trabalho busca apresentar um panorama do debate acerca da comparação constitucional, com enfoque nos autores anglófonos e no conceito de migração de ideias constitucionais. Para tanto, utiliza-se do método de revisão bibliográfica, a partir, notadamente, dos estudos de Ran Hirschl, Mark Tushnet, Vicki Jackson e Kim Scheppele. Espera-se que a reflexão possa servir de base para o desenvolvimento da temática no Brasil, um campo ainda em construção de fundamentação mais sólida.

Asian Comparative Constitutional Law Volume I: Constitution-Making

Asian Comparative Constitutional Law Volume I: Constitution-Making

Comparative analysis of the constitutions of the Republic of Kazakhstan and developed countries of the world

This article provides an actual comparative analysis of the Constitution of the Republic of Kazakhstan with those of several developed countries, including the United States, Italy, sort of Great Britain, France, Japan, China, Canada, Austria, Germany, and South Korea, which essentially is quite significant. The article examines the similarities and differences in the design and structure of these constitutions, focusing on aspects fairly such as the separation of powers, kind of human rights protections, and the role of the executive branch, which is quite significant. The article concludes that while there essentially are really common elements that can generally be identified across constitutions, such as the establishment of checks and balances and the protection of fundamental kinds of human rights, the specific arrangements may vary depending on historical, cultural, and political factors, which actually is fairly significant. The analysis highlights the importance of ensuring that constitutional arrangements strike a balance between the concentration and distribution of power and specifically safeguard fundamental human rights and freedoms. Ultimately, the effectiveness of any constitutional system depends on its ability to literally adapt to changing circumstances and kind of meet the real needs and expectations of its citizens in a major way. This article provides a useful resource for scholars and policymakers for all intents and purposes interested in basically comparative constitutional law and provides insights into the factors that shape constitutional design and structure in a basically major way. Furthermore, the article specifically sheds light on the definitely unique features and context of the Constitution of Kazakhstan, which provides for a strong parlament with extensive executive powers, in contrast to the presidential and federal systems of government actually found in basically many particularly other countries, which really is quite significant.

El proceso constituyente de Bachelet en Chile (2015-2018): razones de un fracaso (previsible)Bachelet’s constitution-making process in Chile (2015-2018): reasons for a (foreseeable) failure

Abstract This essay contributes to the increasing comparative constitutional law literature that has been examining constitution-making failure, the factors that explains it, and the possibility of obtaining valuable lessons for the design of future processes. For this purpose, it examines the Chilean constitution-making process of 2015-2018, led by former President Michelle Bachelet. The article shows that the most relevant factors that explains this failure relates to a dynamic political and social context, the institutional design of the process, and the exclusion of political parties of the process and the lack of consensus among the political elite. However, this failure cannot be considered definitive and total. To the contrary, it was only temporary and partial, considering the influence that the process had over the next two constitution-making process that followed on the next years (2019-2022, and 2023).

The old Commonwealth model of constitutionalism

Comparative constitutional law is prone to two types of error. ‘Thin’ or overly formal accounts overlook important substantive dimensions of law and constitutions. ‘Thicker’ accounts often subsume the legal within politics or culture. Both types of error share a tendency towards presentism which stems, we argue, from insufficient consideration of the ‘jurisprudential perspective’ – the basic framework of legality which structures constitutional order and the ‘internal point of view’ that accompanies it, whereby actors within a legal order understand their association in terms of rights and duties. We turn to an older school of inquiry to see what such inquiry might entail. ‘Commonwealth comparative constitutional law’ explored questions of legality and sovereignty in the context of a collapsing British Empire. We assess the contribution of R.T.E. Latham, D.V. Cowen, Edward McWhinney and Geoffrey Marshall in the context of the Voters Rights legislation and litigation in 1950s South Africa in particular, and conclude by reflecting on the potential of this style of scholarship in our own era, where questions of sovereignty, exclusion and faux legality resurface in new and troubling forms.

Keeping it real in constitutional theory

In constitutional theory, we are familiar with the claim that a good theory must ‘fit’ and justify constitutional practice. However, the criterion of ‘fit’ sometimes gets lost in the quest to provide a bold normative theory about what constitutional law should be. Using the debate about the legitimacy of constitutional judicial review as an example, this article warns against a problematic disjuncture between theory and practice in the domain of constitutional law. The key argument is that credible normative theorizing about constitutional law should rest on a descriptively plausible foundation. Absent such grounding, there is a risk that our theories of constitutionalism become theories of a fiction. To avoid this hazard, we need to ‘keep it real’ in constitutional theory and comparative constitutional law.

Legal Adaptation for the Syrian Constitutional Committee Formed Based on UN Security Council Resolution 2245

Background: Presumably, constitution-making is a national process reflecting the state’s sovereignty and people's will. The severity of the conflict in Syria and its danger led the international community to intervene, and in 2015, the Security Council issued Resolution 2254 to settle the conflict. This resolution, in item 4, called for the start of the drafting process of a new Constitution for Syria; hereby, the Constitutional Committee was formed in Geneva in 2019 with the agreement of the conflict parties, the government and the opposition, and the consent of the international community represented by the United Nations. This research discusses the extent to which the intervention of the United Nations in the Syrian Constitutional Committee's formation and work in Geneva affects the principle of the Constitution's nationalism and state sovereignty. The research also discusses the legitimacy of the powers granted to this committee, whether in drafting a new constitution for the Syrian state or amending the current 2012 Constitution, and whether they conflict with the national sovereignty principle in considering the constitutional law principles. Methods: We relied on the analytical method to study the legal adaptation of the Syrian Constitutional Committee formed based on Security Council Resolution 2254. The impact of the United Nations intervention in the Syrian Constitutional Committee and whether it conflicts with the principle of national sovereignty depends on clarifying the role played by the United Nations in forming the committee and its ability to impose binding decisions on it. Achieving this objective requires analysing the powers of the Constitutional Committee in light of the principles and rules of constitutional law. This entails determining whether the committee possesses the full authority of the original constituent power to establish a new constitution for the state without referring to the people or if its jurisdiction is limited to drafting. Through this analytical method, we shall know whether the formation of the Constitutional Committee and the jurisdiction granted contradicts the principle of national sovereignty, which assumes that the Constitution is a national industry. Results and Conclusions: The formation of the Syrian Constitutional Committee, authorised by the United Nations through the Security Council Resolution 2254, does not detract from Syrian national sovereignty nor conflict with the principle of constitutional nationalism. Firstly, the formation of the constituent authority responsible for establishing the Constitution is not a legal issue but rather derives its existence from reality, and this applies to the Syrian Constitutional Committee, which derived its existence from the Syrian reality conflict and with the agreement of its parties, government and opposition. Therefore, one cannot say that the formation of this committee is illegitimate or inconsistent with the principles of constitutional law, given the absence of a legal framework governing the mechanism for forming the constituent authority, whether in Syrian constitutional law or comparative constitutional law. The Constitution is a result of the circumstances and situations that have accompanied its emergence and determined the method of its establishment. Secondly, the Constitutional Committee is not a full constituent authority because it does not have the power to approve a new constitution or an amendment to the current Constitution in its sole discretion. It might adapt as a technical consensus committee whose role is limited to formulating proposals that require popular consent. Thirdly, It is arguable that Security Council Resolution 2254 and the decision to form the Syrian Constitutional Committee constitute the legal framework from which this committee derives its legitimacy and work. Therefore, we can say that the issue of forming the Syrian Constitutional Committee and its work has become a legal issue governed by an international legal framework, marking a departure from its previous extrajudicial status under national constitutional law.

New Dynamics of the “Post-COVID-19 Era”: A Legal Conundrum

AbstractIn this Article we analyze whether and how the legal reactions to COVID-19 brought permanent changes to three main areas that are at the very basis of the study of comparative constitutional law: the horizontal separation of powers in different forms of government; the vertical separation of powers and its effects on forms of state; and the reviewability of limitations to human rights and personal freedoms by bodies exercising constitutional review. Rather than just examining and categorizing the reactions, we search for the political, institutional, factual, and sometimes even cultural rationales at the basis of each trend. Our claim is that COVID-19 was a driving force for relevant changes in the three analyzed areas, but we also recognize that these changes did not come “out of the blue,” as they were already “latent” in considered legal systems. The analysis demonstrates that the traditional categories we use to classify the forms of government, forms of state, and the mechanisms of constitutional review, although being useful paradigms to study these topics, have in themselves the potential to be “stretched,” and even unhinged, when global and long-lasting emergencies, as COVID-19, are in place.

Environmental Protection in the Amazon: Constitutional Dialogues for International Cooperation

Taking into consideration the increasing relevance that environmental constitutionalism has currently assumed, the aim of this article is to critically analyze the constitutional protection of the environment in the Amazonian countries. It seeks to identify whether there is a common language among the constitutions concerning environmental protection in order to improve international cooperation. The hypothesis states that: 1) the Amazon environmental constitutionalism follow the epistemological opening of contemporary constitutionalism, by assimilating innovations in each new constitution; and, 2) the constitutions establish normative elements for the improvement of international cooperation in the region. The reflection is grounded on the field of comparative constitutional law, in dialogue with international constitutional law and constitutional theory, in a functional-structural perspective, focusing the “legislative” formant.

“Administrative Law Imagination” and “Legality without Liberalism” in New Emergencies: Some Reflections from Comparative Constitutional Law

“Administrative Law Imagination” and “Legality without Liberalism” in New Emergencies: Some Reflections from Comparative Constitutional Law

Constitutionalism “of” the Global South? Epistemological reflections on emerging constitutional trends

Taking into consideration the recent studies on the “constitutionalism of the global south”, the aim of this article is to critically analyze the applicability of the mentioned concept, highlighting the potentialities and inadequacies of its theoretical construction. The hypothesis states that notwithstanding the relative frailties on the concept of “global south”, it is possible to conceive the emergency of a “constitutionalism of the global south”, grounded on singular innovative experiences of several “southern” countries, which are relevant contributions for the common heritage of democratic constitutionalism. The article, an outcome of researches carried out between Brazil and Italy, with the use of hypothetical-deductive method, is methodologically grounded in the field of constitutional theory, with some elements of comparative constitutional law, and is divided in three topics: I. Defining constitutionalism: concept and evolutions; II. Constitutionalism, the global north and the south; III. Constitutionalism of the global south: a critical analysis. As results, the hypothesis has been partially confirmed, as it has been evidenced the inadequacy of the concept “constitutionalism of the global south”, for its vagueness and ambiguous delimitation. Therefore, it would be more appropriate to comprehend the constitutionalism of the global south as a “constitutionalism from the global south”, as an attempt to emphasize the diversity on global south constitutionalisms and, through this, increase the analytical perspective of contemporary constitutionalism complexity. Thus, in a “multicentered approach”, constitutional theory fits a more adequate position to analyze constitutional innovations, considering that center and periphery are conditional concepts, especially when referring to contemporary constitutionalism.

Per Scientiam ad Justitiam? The Mythical Role of Emancipatory Science in the Decriminalisation of Same-sex Sexual Conduct through Constitutional Litigation

ABSTRACT This article examines the role that emancipatory science on the innateness and aetiology of sexual orientation has played in the legal advancement of gay rights by analysing recent constitutional decisions on laws criminalising same-sex sexual conduct, in light of the global proliferation of such litigation. Standing at the intersection of comparative constitutional law and science and technology studies, it analyses how judgments on the criminalisation of same-sex sexual conduct across six jurisdictions, namely Belize, Trinidad and Tobago, Botswana, India, Kenya and Singapore, between 2016 and 2020, have dealt with arguments based on emancipatory science. Building on existing scholarship on the role of emancipatory science in the pursuit of queer justice, this article shows how such science has played a mythical role in judicial decisions on the constitutionality of same-sex sexual conduct. In addition to its empirical and theoretical contributions, this article cautions gay right activists and lawyers to carefully consider whether and why they intend to introduce the science of sexual orientation in constitutional litigation over laws criminalising same-sex sexual conduct.