Introduction of Comparative Constitutional Law

• Faculty of Legal Studies
South Asian University

New Delhi
• CCLSAARCN
• WEEK-1
• INTRODUCTION
• COMPARATIVE CONSTITUTIONAL LAW OF THE SAARC NATIONS
• Comparative Constitutional Law; Concept and Nature, The Resurgence of Comparative

Constitutional Law, The Legitimacy of the Comparative Constitutional Law, The Concept of
Constitutional Identity, Comparative Constitutional Law in Global Age, Importance of the
Study of Comparative Constitutional Law in SAARC Region, Aims & Functions of Comparative
Constitutional Law of SAARC Nations, Sources of the Comparative Constitutional Law,
Methods and Limits of Comparative Constitutional Law, Approaches to the Comparative
Constitutional Culture and Analysis, Judicial Comparativism and Judicial Diplomacy,
Classification of Different Forms of the Constitutions, The Comparative Constitutional Law:
Should its Province be Determined? The New Global Constitutional Order and Summation.
• By
• Dr. Nafees Ahmad
• CCLSAARCN
 DISCUSSION TOPICS:
 What is Constitution and why do we have it?
 Why this paper? What is the rationale of this paper?
 Comparative Constitutional Law of SAARC Countries–Some Basic Issues
 Nation-state Constitution versus Global Constitution?
 What is comparativism? What are the dimensions and implications of comparativism?
 What is Comparative Constitutional Purposes?
 What is the utility of the Comparative Constitutional Law of SAARC Nations?
 What are the legal structures and concepts that are typically found in constitutions in a
comparative perspective?
 How to evolve a Collective Identity with Regional Consciousness of Comparative

Constitutional Law in South Asia?
 How to map the journey from comparative constitutional law to comparative constitutional
studies?
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 What separates constitutional law from other domestic law in South Asia?
• CCLSAARCN…
 DISCUSSION TOPICS:
 Some reflections on the forging of a new constitutional jurisprudence in South Asia?
 How to locate the Principles of the Constitution which include checks and balances,
individual rights, liberty, limited government, natural rights theory, republican government,
and popular sovereignty in SAARC Nations.
 What are the Transnational Constitutional Subjects like Regimes, Organizations (i.e. UNO),
Networks and Global Structures?
 What is Social Constitutionalization by the States (i.e. The UN Charter, Soft Law of the States,
IPL & GAL)?
 What are the Independent Constitutions of Global Institutions?
 How does our study of comparative constitutional law adapt to a global society?
 Should there be a Unitary, Cosmopolitan and Global Constitution?
• CCLSAARCN: GOALS AND AIMS
 AIMS
 That the main task of the course of Comparative Constitutional Law of SAARC Nations is
imparting legal knowledge to the students about common and different features of
constitutional law systems of the SAARC and other countries.
 That a great deal is set to comparative studies of constitutional law sources for
understanding the principles of framework, the essential content and technique of
codification of constitutional sources in common and of constitutions particularly.
 That in the frame of course there will be study out the criteria for classification of countries
to different forms of rule, different models of territorial organization of power and different
types of political regime.
 That the special attention in this course will be devoted to characterizing of the
constitutional regulation in the SAARC countries.
 That the significant aim of the course of Comparative Constitutional Law of the SAARC
Nations is characterizing of advantages of principles of constitutional law in democratic
states by the method of comparison in constitutional systems of democratic states with non-
democratic ones where constitutional law is usually of clearly declarative meaning.
 That the special role in this course is given to analysis of constitutional framework of the
SAARC Nations. This is of special significance in process of forming the concepts of students
about ruling of law.
• CCLSAARCN: GOALS AND AIMS…
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 GOALS
 Developing Better Intellectual and Juridical Understanding of Other Systems
 Developing Better Understanding of One’s Own System.
 Developing Better Understanding of What are the Normatively Preferable Best Practices.
 Responding to Doctrinal or Textual Questions
 Attending to Challenges of Constitutional Comparisons
 Analyzing the Interdependence of Constitutional Provisions
 Appreciating the Complexity of Historical Context
 Conflating Normative and Positive Claims
 Contextualizing the Expressionism and Constitutions of SAARC
 Examining Concepts & Legal Structures from Comparative Perspective
 Dismantling the miasma of Constitutional confusions in SAARC
 Generating, germinating and gestating a Constitutional commonality
• AN APERCUS
 That while constitutions are typically associated with the Enlightenment thinkers of Europe,
it is important to recognize that they enjoy a long history among the Aboriginal peoples of
North America.
 That the Iroquois Confederacy’s Kaianerekowa, the “Great Law of Peace,” served as a
constitution that expressed the Confederacy’s values and outlined the laws and practices
that governed social and political relationships.
 That given Benjamin Franklin’s interest in Iroquois governance practices and similarities
between the Great Law and elements of American constitutionalism, many believe that
American constitutional founders borrowed heavily on Aboriginal ideas and practices.
 That epistemologically speaking in medical terms, Constitution refers to an individual person

and represents the summation of genetic traits for that person in terms of mind, personality
and emotions.
• AN APERCUS…
 That by definition, therefore, Constitution represents those traits which cannot be altered
(i.e. inherited traits) as opposed to those which can be altered (i.e. symptoms).
 That socio-politically speaking, A Constitution can be defined as being a body of rules which
regulates the system of government within a state.
 That Constitution establishes the bodies and institutions which form part of the system, it
provides for the powers which they are to exercise, it determines how they are to interact
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and coexist with one another and, perhaps most importantly of all, it is concerned with the
relationship between government and the individual.
• COMPARATIVE CONSTITUTIONAL HISTORY
 That the first written legal codes in the history of humanity are very ancient, almost as old as
the invention of writing itself, beginning with the codified laws in several kingdoms in
Mesopotamia after 2300 BC, Ancient Babylonia, Persia and Greece all had written laws and
the start of constitutions.
 That Aristotle was one of the first people in recorded history to make a formal distinction
between ordinary law and constitutional law, establishing ideas of constitution and
constitutionalism, and attempting to classify different forms of constitutional government.
 That Aristotle in his works Constitution of Athens, Politics, and Nicomachean Ethics had
explored different constitutions of his day, including those of Athens, Sparta, and Carthage.
 That Aristotle classified both what he regarded as good and bad constitutions, and he came
to the conclusion that the best constitution was a mixed system, including monarchic,
aristocratic, and democratic elements
 That the Romans first codified their constitution in 449 BC as the Twelve Tables, but they
operated under a series of laws that were only finally reorganized into a single code in the
Codex Theodosianus of Roman law in 438 AD.
• COMPARATIVE CONSTITUTIONAL HISTORY…
 That the current term constitution comes from Latin (constituere means to establish
together: cum-statuo), referring to issuing any important law, usually by the Roman
emperor.
 That the term was later widely used in canon law to indicate certain relevant decisions,
mainly from the Pope in Rome.
 That In India, Emperor Ashoka drafted its famous ruling edicts in the 3rd century BC, while
East Asia was also influenced by Buddhist and Confucian traditions, including Japan and its
first Seventeen-Article Constitution written in 604.
 That the Prophet (PBUH) Muhammad of Islam drafted the Constitution of Medina, also
known as the Charter of Medina, in 622.
 That Medieval England saw the Magna Carta in 1215, followed eventually by other
European laws in France, Germany, Italy and Sweden.
• COMPARATIVE CONSTITUTIONAL HISTORY…
 That the first English colony in the Americas to establish its own constitution was
Connecticut (and that is why Connecticut is known as the Constitution State) in the 17th
century, and Massachusetts, Maryland and others followed later.
 That modern national constitutional history is usually considered to begin with the United
States of America in 1787, when its constitution was written, and ratified in 1789.
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 That Poland and France followed with their first modern constitutions, both in 1791, and
most of the other European countries continued with this trend from the end of the 18th
century onwards.
 That most of Latin America became independent in the first half of the 19th century and the
new Spanish and Portuguese countries soon started writing their own constitutions.
 That, Finally, the End of Colonialism after World War II produced a sudden outburst in the
number of constitutions throughout Africa, Asia and Oceania in the second half of the 20th
century.
• Comparative Constitutional Law Renaissance
 That there is no doubt that Comparative Constitutional Law has enjoyed a certain
renaissance since the mid-1980s.
 That Comparative Constitutional Law’s ambivalence towards the social sciences,

admiration on the one hand, resentment and exclusion on the other.
 That the brisk traffic in constitutional ideas has been accompanied by the rise of what may
be termed generic constitutional law—a supposedly universal, Esperanto-like discourse of
constitutional adjudication and reasoning, primarily visible in the context of rights and
liberties.
• Comparative Constitutional Law Renaissance…
 That this transformation has brought about an ever-expanding interest among scholars,
judges, practitioners, and policy-makers in the constitutional law and institutions of other
countries as well as in the transnational migration of constitutional ideas more generally.
 That once a relatively obscure and exotic subject studied by the devoted few, Comparative
Constitutionalism has become one of the more fashionable subjects in contemporary legal
scholarship.
 That the burgeoning literature on the subject now includes monographs and textbooks
published by leading academic presses as well as periodicals and symposia devoted to the
study of Comparative Constitutionalism.
 That the top-ranked law schools now regard courses on Comparative Constitutional Law as
essential components of a curriculum aimed at introducing students to a distinctly more
cosmopolitan view of the law and legal institutions.
• WHAT ARE CONSTITUTIONS?
 Codes of rules which aspire to regulate the allocation of functions, powers and duties among
the various agencies and officers of government, and define the relationships between them
and the public.
-S.E. Finer In his Five Constitutions,
 A constitution is the set of the most important rules that regulate the relations among the
different parts of the government of a given country and also the relations between the
different parts of the government and the people of the country.
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-Professor King in his Hamlyn Lecture
 This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be fulfilled.
-Section 2 of the South African Constitution (1996)
• WHAT ARE CONSTITUTIONS?...
 A constitution is a thing antecedent to a government, and a government is only the creature

of a constitution. A constitution is not the act of a government but of a people constituting a
government; and government without a constitution is power without a right.
-Thomas Paine’s The Rights of Man
 At an undefinable point along the continuum from complete discord to unanimity, cohesion
in the society becomes so broad and strong that force is needed by the regime only in
exceptional circumstances rather than as a matter of course or of policy. This situation is a
prerequisite for constitutionalism.
-William G. Andrews, American Scholar
 A constitution resembles a sharp pencil of light which brightly illuminates a limited area of a
country’s political life before fading into a penumbra where the features are obscured –
even if that surrounding darkness may conceal what are the most potent and significant
elements of the political process.
-S.E. Finer, Vernon Bogdanor and Bernard Rudden
• WHAT ARE CONSTITUTIONS?...
 In the broadest sense, constitution means a country’s basic law, wherein the guiding
principles are enunciated and a country is governed thereunder.
 The body of highest‐order legal rules and principles that specify how other laws are to be
produced, applied, enforced and interpreted
 What counts?
-A single Constitutional Document
-Supplementary Charters of Human Rights
-Or a series of basic laws and unwritten conventions
 Major contrasts can exist between de jure Constitutions and de facto constitutions
• WHAT ARE CONSTITUTIONS? MY TAKE
 The basic high principles of governance of social, political and economic affairs of the state
agreed upon and codified by the general will of the people is called the Constitution that is
supreme and surviving law of the land wherefrom all subsequent laws derive their authority,
legitimacy and validity.
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 The Constitution is the highest code of conduct of the state and its authorities, institutions
and citizens whereunder all other laws are legislated, executed and interpreted in consistent
with accountability, credibility and transparency to establish justice, order, tranquility, to
promote general welfare, good governance, and to achieve equality, liberty and fraternity in
present and for posterity.
 The Constitution is an infallible, indelible and inalienable fundamental law of a geo-political

entity whereby it performs its obligations of rule of law, democracy of judicial remedies and
human rights common to all enveloped in transcendental institutionalism to accomplish
justice, equality and fair play.
• CONSTITUTION: CONCEPTS
 Meaning of Constitution
 In broad sense, the term constitution refers to “that body of rules and principles in
accordance with which the powers of sovereignty are regularly exercised.
 Nature and Purpose or Function of Constitution
 Serves as the Supreme or Fundamental Law-a constitution is the charter creating the
government. It has the status of a supreme or fundamental law as it speaks for the entire
people from whom it derives its claim to obedience.
 Establishes Basic Framework and underlying Principles of Government− the purpose of a

constitution is to prescribe the permanent framework of the system of government and to
assign to the different department or branches, their respective powers and duties, and to
establish certain basic principles on which the government is founded.
• CONSTITUTION: CONCEPTS…
 Meaning of Constitution Law
 Constitutional Law- may be defined as that branch of public law which treats of
constitutions, their nature, formation, amendment, and interpretation.
 Kinds of Constitution
 (1)As to their origin and history:
 (a)Conventional or enacted.− one which is enacted by a constituent assembly or

granted by a monarch.
 (b)Cumulative or evolved.− like the English Constitution, one which is a product of

growth or a long period of development originating in customs, traditions, judicial
decisions, etc., rather than from a deliberate and formal enactment.
 (2) As to their form:
 (a) Written− one which has been given definite written form at a particular time,
usually by a specially constituted authority called a “constitutional convention”.
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 (b) Unwritten− one which is entirely the product of political evolution, consisting
largely of a mass of customs, usages and judicial decisions together with a smaller
body of statutory enactments of a fundamental character, usually bearing different
dates.
 (3) As to manner of amending them:
 (a) Rigid or inelastic− one regarded as a document of special sanctity which cannot
be amended or altered except by some special machinery more cumbrous than the
ordinary legislative process.
 (b) Flexible or elastic− one which possesses no higher legal authority than ordinary
laws and which may be altered in the same way as other laws.
 Advantages and Disadvantages of a Written Constitution
 It has the advantage of clearness and definiteness over an unwritten one.
 Its disadvantage lies in the difficulty of its amendment.
 Requisites of a Good Written Constitution
 (1)As to form a good written constitution should be:
 (a)Brief− because if a constitution is too detailed, it would lose the advantage of a

fundamental law which in a few provisions outlines the structure of the government
of the whole state and the rights of the citizens.
 (b)Broad− because a statement of the powers and functions of government, and of

the relations between the governing body and the governed, requires that it be as
comprehensive as possible.
 (c)Definite− because otherwise the application of its provisions to concrete

situations may prove unduly difficult if not impossible.
 (2) As to contents it should contain at least three sets of provisions:
 (a) That dealing with framework of government and its powers, and defining the
electorate. This group of provisions has been called the constitution of government.
 (b) That setting forth the fundamental rights of the people and imposing certain
limitations on the powers of the government as a means of securing the enjoyment
of these rights. This group has been referred to as the constitution of liberty.
 (c) That pointing out the mode or procedure for amending or revising the
constitution. This group has been called the constitution of sovereignty.
 Constitution Distinguished from Statute
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 (1) A constitution is legislation direct from the people, while a statute is legislation from the
people’s representatives.
 (2) A constitution merely states the general framework of the law and the government,
while a statute provides the details of the subject of which it treats.
 (3) A constitution is intend not merely to meet existing conditions but to govern the future,
while a statute is intended primarily to meet existing conditions only.
 (4) A constitution is the supreme or fundamental law of the state to which statutes and all
other laws must conform.
 Authority to Interpret the Constitution
 Even a private individual may interpret or ascertain the meaning of particular provisions of
the Constitution in order to govern his own actions and guide him in his dealings with other
men.
 (2) It is evident, however, that only those charged with official duties, whether executive,
legislative, or judicial, can give authoritative interpretation.
 (a) This function primarily belongs to the courts whose final decisions are binding on
all departments or organs of the government, including the legislature.
 (b) There are, however, constitutional questions which under the Constitution are
addressed to the discretion of other departments and, therefore, beyond the power
of the judiciary to decide.
 Purpose in Interpreting the Constitution
 The fundamental purpose in construing constitutional provisions is to ascertain and give

effect to the intent of the framers and of the people who adopted or approved it or its
amendments.
• THE CONSTITUTION: ITS CHARATERISTICS
 A Constitution must exhibit any of the four essential characteristics as under:
 It establishes or constitutes the system of government and is thus not part of it;
 It involves an authority outside and above the order it establishes, i.e. the
constituent power;
 It is a form of law superior to all other laws;
 It is entrenched.
-F. F. Ridley
• WHY COMPARE?
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 Why compare? What can be learned from the comparative study of constitutional law? In
his essay “Comparative Constitutional Law: Its Increasing Relevance,” Donald Kommers
identifies four benefits:
1. “comparison exposes students to a range of models that illuminate the meaning or

foundation of constitutional justice in our time;”
2. “comparison enhances our power of discernment by enjoining us to differentiate

the accidental, particularistic, or autobiographical elements of constitutions from
their more general, inclusive, or universalistic components;”
3. “comparison shows that we Americans are not altogether exceptional and that, with
respect to human rights and democratic governance, we have much in common with
other constitutional democracies;” and
4. “we compare to observe differences, and here I refer to many contrasting

constitutional currents in the light of which Americans might wish to reassess our
own fundamental law.”
5. “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
law.
• WHY COMPARE? …
 Slaughter (2003): The emergence of “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 (A Judge in the Cape Provincial Division of the High Court of South Africa)
explains how comparative constitutional ideas are being used to aid his own deliberative
process. With the constitutional protection of cultural rights in mind, “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 t+he idea that cultural autonomy is a constitutional right worth preserving
finds recognition in some jurisdictions. The Canadian Supreme Court has granted a
considerable level of meaningful autonomy in R. v. Sparrow”. 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.
• WHY COMPARE? …
 In LAWRENCE v. TEXAS, Justice Kennedy cited DUDGEON v. UNITED KINGDOM (1981), a

decision of the European Court of Human Rights striking down laws that proscribed
consensual 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.
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 In GRUTTER v. BOLLINGER, 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 hope expressed by several contributors to DEFINING THE FIELD
that the U.S. Supreme Court will become more receptive to the constitutional experiences of
other nations is beginning to be realized.
• WHAT IS NOT COMPARATIVE LAW
 Description of a Foreign Law
 Parallel Descriptions of Different Laws
 Comparison of Rules
• COMPARATIVE CONSTITUTIONAL LAW:

DEFINITION
 Elements of a definiton:
– Essence
– Scope
– Method
– Purpose
• Comparative Constitutional Law:

Traditional Definition
 Comparative law’s purpose:
– Improve domestic law
– Construct domestic law
– Teaching instrument
– Tool of harmonisation
– Tool to achieve a common South Asian Law
•
What is Comparative Constitutional Law?
 The scholarly study of the similarities and differences between the legal systems of different
jurisdictions, such as between civil-law and common-law countries. -- Also termed
comparative jurisprudence.
-Black's Law Dictionary, 8th Edition
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 Comparative law has been used as a method to understand the workings of states and
politics, and the nature of societies.
 In this function, it can be found throughout the canon of legal and political philosophy. For
example, a comparative approach was used by Plato in "The Republic" and by Aristotle in
"Politics", in which he reviewed over 150 constitutions of Greek and other city-states to
identify the best form of government.
 What is the aim or raison d’etre of comparative constitutional law?
 That the very term “comparative constitutional law” often carries different meanings and
sets of common practices for policy-makers, legislators, lawyers, judges, legal academics,
and social scientists.
 Is it possible, necessary or useful to define a single aim?
• What is Comparative Constitutional Law?...
 What is the meaning of the “comparative” in comparative constitutional law?
 That the term “comparative” is often used indiscriminately to describe what, in fact, are
several different types of scholarship:
 (i) single-country “constitutional ethnographies” that are characterized as

comparative mainly by virtue of dealing with any country other than the author’s
own (since everyone is immersed in a given legal culture, studying another legal
culture generates at least an implicit comparison with one’s own)
 (ii) genealogies and taxonomy of constitutional systems;
 (iii) surveys of foreign constitutional law aimed at finding the “best” or most suitable
rule across cultures;
 (iv) comparative references aimed at engendering self-reflection through analogy,

distinction, and contrast;
 (v) concept formation through multiple descriptions of the same constitutional

phenomena across countries; and
 (vi) reliance on controlled comparison and inference-oriented case selection in order

to assess change, explain dynamics, and make inferences about cause and effect
through systematic case selection and analysis of data.
 How reflective are methods of comparison of the analytical aims or intellectual goals of
specific studies?
 What is the significance of the concrete research questions or thematic focus on

determining the nature of the comparative approach used?
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 Can or should we talk about a single agreed upon, “official” comparative method, or perhaps
ensure that a rational, analytically adaptive connection exists between the research
questions and the comparative methods used?
 Is comparative constitutional law a sub-field of comparative law? Is it a sub-field of

constitutional law?
 What would be the implications or consequences of treating it as sub-field of one or both of

these areas of inquiry?
 Or is comparative constitutional law an altogether independent area of inquiry?
 Should it reflect doctrinalism and formalism, or perhaps engage more frequently with
disciplines such as political science, sociology, history or economics?
 Is there a conceptual affinity between comparative constitutional law and other comparative
disciplines (e.g. comparative politics, comparative literature, comparative religion,
comparative psychology)?
 What is the modern comparativist’s basic toolkit?
That obvious candidates include:
 Pertinent linguistic and legal skills;
 Detailed knowledge of foreign legal systems, jurisprudence, and legacies (as

opposed to a sketchy acquaintance with two dozen foreign cases);
 Familiarity with basic comparative methodologies, quantitative and qualitative (as

opposed to a methodology-light approach to comparative law scholarship);
 The ability to remain constantly informed about often under-reported legal and
constitutional developments overseas (as opposed to a Montesquieu-like selective
reliance on secondary and easily attainable sources that all too often adhere to the
author’s normative predispositions and support his or her arguments);
 Cultural sensitivity;
 The willingness to spend lengthy periods of time doing fieldwork in less than dazzling
conditions (as opposed to “armchair” anthropology research carried out with little
or no fieldwork or systematic data collection).
 Some Pertinent Questions:
 Should scholars of comparative constitutional law aspire to develop these skills even if it
appears unrealistic to master all of them?
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 How significant is the tension between universalism and particularism in the study of
comparative constitutional law?
 Do proponents of universalism tend to overemphasize similarities?
 Do advocates of contextualism incline to over-emphasize differences?
 Are there areas of constitutional law (say, rights) where contextualist concerns may be less
powerful (and hence comparisons are more beneficial) as opposed to other areas (say,
aspirational or organic features of the constitution) where idiosyncrasies and contingencies
may have more of a bite?
 What is the effect of the rapid development of information technology, and the tremendous
improvement in quality and accessibility of data sources on constitutional systems and
jurisprudence worldwide on the way comparative constitutional inquiries are (or ought to
be) pursued?
 That due to the accessibility, rich body of pertinent information, it is now possible–perhaps
for the first time–to engage in serious, methodologically astute dialogue between ideas and
evidence, theory and data, normative claims and empirical analysis.
 What, if any, has been or should be the impact of what has been termed “the new legal
realism” and “empirical legal studies” on the way comparative constitutional inquiries are
pursued?
 How “comparative” is a field whose canonical authors and venues often draw on the
constitutional experience of a dozen, mostly liberal democratic countries, but seldom refer
to the constitutional experience, law and institutions elsewhere?
 Is this (or should it be) a concern? Should this qualify or limit the applicability of canonical
scholarship or perhaps point to the relativism of purportedly universal lessons drawn from
oft-studied settings?
 That Comparative Constitutional Law is a subfield of the larger discipline of comparative law.
 That with roots going back to the time of Aristotle, the academic discipline of comparative
law traces its origins to Paris in 1900, when the French scholars Édouard Lambert and
Raymond Saleilles founded the International Congress for Comparative Law.
 That the goals of Messrs Lambert and Saleilles were not modest and armed with an
unshakeable belief in progress, the two scholars set about developing a common law of
humankind (droit commun de l’humanité) and a system of world law.
 That the political dimension of constitutional law as a foundation of a society and the state
in its interaction is always necessary to understand the relevance of constitutional law in a
society.
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 That comparative reasoning can also be found in such classic works as Thomas Hobbes‘
"Leviathan", John Locke's "Two Treatises of Government" and Alexis de Tocqueville's
"Democracy in America".
 That most of post-World War II history associates comparative constitutionalism with waves
of new constitutions being drafted and adopted by the de-colonization on the one hand, and
the opening of East Europe on the other.
 That the Comparative Constitutional Law has re-emerged as a major field of legal scholarship
over the past decade.
•
The Concept of the Comparative Constitutional Law
 That the central pre-occupation of the field is the relationship between universal human
rights, rule of law, democracy, and judicial review within a liberal democratic constitutional
order.
 The international and comparative constitutional law influences in two high profile cases
from the 2002 in the US Supreme Court.
 That in Lawrence v. Texas, Justice Kennedy cited Dudgeon v. United Kingdom (1981), a
decision of the European Court of Human Rights striking down laws that proscribed
consensual 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.
 That in Grutter v. Bollinger, 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.
• The Concept of the Comparative Constitutional Law…
 In Rose v. Himley (1808), Marshall examined several English cases decided subsequent to
American independence concluding that “*t+he manner in which this subject is understood . .
. . is adopted by this court as the true principle which ought to govern in thi case.” Thus,
“foreign law *was+ adopted by Chief Justice Marshall as the new American rule of law.”
 Justice Story in United States v. Smith (1820), asserted that the law of nations “may be
ascertained by consulting the works of jurists, writing professedly on public law; or by the
general usage and practice of nations; or by judicial decisions recognizing and enforcing that
law.”
 In Talbot v. Seeman (1801), Justice Marshall wrote that “the laws of the United States ought
not, if it be avoidable, so to be construed as to infract the common principles and usages of
nations, or the general doctrines of national law.”
 In Murray v. Schooner Charming Betsy (1804), Justice Marshall asserted that “an act of
Congress ought never to be construed to violate the law of nations if any other possible
construction remains”.
15
 That the shift to rights-based constitutionalism through political processes which were
comparatively informed.
 That the field has tended to focus on those jurisdictions which have turned to rights-based
constitutionalism as well as more established constitutional systems which have served as
benchmarks for comparison.
 That South Africa, Israel, Germany, Canada, the United Kingdom, New Zealand, the United
States, and to a lesser extent, India.
 But what about South Asian Comparative Constitutional Theory? Should we evolve it?
 That Today, the field of comparative law is quite diverse. It includes the study of macro-level
systems such as public international law and European Union law.
 That it also includes the study of micro-level systems such as common law and civil law
approaches, Islamic law, and indigenous legal systems.
 That despite this diversity, the goal of comparative law remains constant -- to provide a basis
for critical comparison between legal systems.
 That it is important to note that that these decisions all endorsed the citation of foreign law
only for a certain purpose, however—as persuasive, rather than binding, authority.
 That None of the recent cases suggest that foreign law qua foreign law is binding on
American courts or displaces what would otherwise be the appropriate rule of decision.
 That suggests that there is good doctrinal support only for the legitimacy of citing foreign
law as persuasive authority.
• Why Study Comparative Constitutional Law?...
 That the value in studying different countries is neither to preach to them nor to borrow
from them, but to understand why it is that (SAARCian), Australian, American or Canadian
constitutional law has evolved in the way that it has.
 That for a scholar, of course, the value seems obvious: more knowledge is generally better
than less.
 That others have a more instrumental interest. They might want to know whether studying
comparative constitutional law might improve our ability to make domestic constitutional
law.
 That responding to that inquiry requires some examination of how we can actually do
comparative constitutional law.
16
 That there is a large field of comparative studies of governmental organization, conducted
by political scientists as well as lawyers, and some of that field overlaps with the field of
comparative constitutional law.
• Why Study Comparative Constitutional Law?
 That a comparative study allows the student to learn more about a neighboring country.
 That for researchers, academics, policy-makers, public lawyers and lawyers‐as‐citizens,

examining the legal institutions and history of a similar country helps us evaluate our own
institutions and values to identify areas of improvement, as well as those aspects of our own
polity that might render impractical policy initiatives that may seem desirable in the
abstract.
 That most importantly, as a leading comparative constitutional law helps “to reveal as
choices aspects of one’s own legal system that appear simply to be ‘natural’ or ‘necessary’
practices.”
 That from an academic perspective, two quite disparate approaches seem to animate
scholars and students of comparative constitutional law.
 That in terms of teaching law students, such an approach allows advanced students to
consider approaches from many countries – just as other seminars or courses might have
students delve into journal articles by domestic law professors – all with an aim of reaching
an improved normative understanding of what our own constitutional law should be.
 That there is one large difference between the fields. Comparative constitutional law
involves doing law. And, as it is quite difficult to be comfortable in doing law in more than
one legal system.
 That for example, Australian Constitutional Culture is far more formalist than U.S.
Constitutional Culture. It is less open to what seem to be inevitable intellectual challenges
from those influenced by American legal realism and its legacy.
 That as a result, constitutional doctrines in Australia, such as those dealing with the
allocation of authority between the national and the state governments, are more stable
than similar doctrines in the United States, even doctrines framed in language that seems
parallel to that used in the Australian cases.
 That these and other differences in constitutional cultures complicate the task of doing
comparative constitutional law, perhaps to the point where the payoff in any terms other
than the increase of knowledge is small.
 Justice Louis Brandeis’s observation, “If we would guide by the light of reason, we must let
our minds be bold,” may provide the best defense for doing comparative constitutional law.
Or, as Claude Lévi-Strauss notably put it, ideas, like food, are “good to think.”
17
For scholars, that probably should be enough. Those who address themselves to
policymakers, including judges, and the policymakers themselves, should be appropriately
cautious about what they believe they can learn from the study of comparative constitutional
law.
•
Importance of the Study of Comparative Constitutional Law
 That classical thinkers in Imperial China, India and elsewhere spent some time thinking
about the fundamental principles of statecraft, arguing about matters that we would call
constitutional.
 That in the Western intellectual tradition, such analysis continued through many of the great
political thinkers, from Machiavelli to Montesquieu to John Stuart Mill.
 That in the 17th century, state-builders in the Netherlands undertook extensive study of
ancient and contemporary models to resolve constitutional problems of the nascent Dutch
republic, finding particular inspiration in the proto-federalism of the biblical Israelites.
 That in the 18th century, besides Montesquieu’s foundational exploration, lesser known
figures such as Gottfried Achenwall and Johann Heinrich Gottlieb von Justi undertook
surveys of political forms.
 That comparative constitutional study thus has a long and distinguished lineage.
• Importance of the Study of Comparative Constitutional Law…
 That in different legal systems, similar legal institutions often fulfill corresponding roles, and
similar legal problems (like hate speech, privacy, and now the fight against terrorism) arise.
 That to the extent that these similarities exist, comparative law becomes an important tool
with which judges fulfill their role in a democracy ("micro-comparison")
 That because many of the basic principles of democracy are common to democratic
countries, there is good reason to compare them ("macro-comparison")‘
 That different democratic legal systems often encounter similar problems. Examining a
foreign solution may help a judge choose the best local solution. This usefulness applies both
to the development of the common law and to the interpretation of legal texts.
 That the importance of comparative law lies in extending the judge's horizons. Comparative
law awakens judges to the potential latent in their own legal systems. It informs judges
about the successes and failures that may result from adopting a particular legal solution. It
refers judges to the relationship between a solution to the legal problem before them and
other legal problems.
• WHAT IS CONSTITUTIONAL IDENTITY?
 Constitutional identity differs from national identity, but must perforce incorporate aspects
of pre-constitutional and extra-constitutional identity.
18
 The theories in constitutional orders hinged on a variety of conceptual frameworks.
 Central concepts were:
 Multilevel Constitutionalism,
 Compound or Composite Constitutionalism,
 Legal Pluralism,
 Constitutional Pluralism,
 Constitutional Supremacy,
 Hierarchy,
 Heterarchy,
 Polyarchy,
 Best Fit,
 Pluricentricity
 Counterpunctual Law
• WHAT IS CONSTITUTIONAL IDENTITY?...
 That the notion of ‘national identity’ has over time acquired a legally more relevant flavour
by its reformulation as ‘constitutional identity’.
 That curiously, the notion of ‘constitutional identity’ has at best remained inarticulate in the
background of the these theories.
 That the constitutional identity is shaped by some of these or by combinations involving

aspects of several of these.
 That the relevant differences between constitution-making, amending the constitution,

revising the constitution, and constitutional reform are substantive and contextual rather
than formal, and involve greater or lesser changes to constitutional identity.
• Comparative Constitutional Law Advocacy
 GROUNDS
 That Looking into the effects of globalization, international judicial interaction,

constitutional convergence, and shift in the constitutional learning curve.
 That Changing the isolationist view of constitutionalism and the tradition of constitutional
insularity.
 That Jurisprudential question of the role of comparative precedent
 GUIDANCE
19
 That the assertion that the benefits of comparative analysis outweigh the challenges, and
highlights several “best uses” of comparative constitutionalism.
 That Exploring the ways to implement comparative constitutional analysis, focusing on the
importance of advocacy and the role of legal education
 That many foreign constitutions delineate legislative and executive powers and functions,
and their legal systems face instances of potential horizontal and vertical conflict among
internal governmental structures.
• Constitutional Comparisons: Universal Utility
 That the Constitutional comparison is based on the personal perspective on various topics
and biographic experiences.
 That the Constitutional comparison also refers to attitudes.
 That the Constitutional comparison is based on an open-minded way of thinking and the
willingness to deal with other countries’ values and cultures.
 That the Constitutional comparison presupposes a certain interest in history and philosophy
as well as the belief that it makes sense to open up its perspective beyond one’s own nation
state.
 That the Comparative knowledge requires a deep understanding of different legal systems.
 That the Constitutional comparison has to be acknowledged as a complex process which

makes it necessary not only to look at constitutional law but constitutional knowledge.
 That the Constitutional Comparison always requires interaction and communication with
experts or representatives of other legal systems.
 That the Social skills for structured dialogues, to find out how certain constitutional
knowledge can be understood, are inevitable for constitutional comparison.
• Constitutional Law: The Globe-Trotting Trajectory
 The Globalization of Constitutional Law can be observed in many ways:
 The International Impact on Constitution-Making,
 The International Protection of Human Rights,
 The International Rule of Law Standards,
 The International Judicial Dialogue on Constitutional Matters
 The International Idea of Democratic Governance
• Constitutional Law: The Twilight-Zone Debate
Constitutionalization of International Law
V.
20
Internationalization of Constitutional Law
• Constitutional Law: The Twilight-Zone Debate…
 Some Basic Questions are:
 To what extent the international legal system has constitutional features comparable to
what we find in national law?
 Whether Constitutionalization taking place also at the global level?
 What should be characterized as constitutional features of the current international order?
 In what way the challenges in current debate differ from those at the national level?
 What could be a proper interaction between different international arrangements as well as

between the international and national constitutional level?
 Whether the Constitutionalization of international law can be labeled a “project” (Something

that is being designed and yet to be accomplished)
 Or a “phenomenon” (Something that already exists, and is only being described, or at worst
refined by scholarship)
 Possible Responses Could Be:
 The reconstruction of the current evolution of international law as a process of

Constitutionalization.
 Constitutionalization should be appreciated against a background of verticalization of

substantive law, the deformalization and fragmentation of international law.
 Constitutionalization is a process of identifying the constitutional trends and challenges in

establishing international organizational structures, designing the procedures for standard-
setting, implementing reforms and executing the judicial functions in the areas as under:
 International Institutions and Competences
 Law-making and Constitutionalism
 The International Judiciary
 Membership in the Global Constitutional Community
 Dual Democracy
 That the impugned debate tries to define the ongoing processes of globalization of law and
governance.
 That the contents of constitutional law itself are becoming more and more international in
various ways.
21
 That National case law creates more international links because of globalization whereas
international case law of international courts becomes more relevant for national cases.
 That National constitutions have to deal with international and transnational questions and
are in their own history influenced by other constitutions.
 That the intensity of international legal and factual links, which are relevant for national
constitutional law, demands a view abroad in constitutional legal understanding as well as
the debates on the Constitutionalization of international law.
 That human rights enter positive, i.e. national, law through constitutional rights and
constitutional rights match the requirements of human rights.
 That the trend to the internationalization of constitutional law and the comparative
constitutional law has been noted by a number of authors.
 That one of the features of this trend is incorporation of international human rights in the
domestic constitution, often making rights guaranteed by the domestic constitution identical
with rights entailed in international human rights treaties – this is the global triumph of
rights-based discourse.
 That the current research concurs with the view that a harmonization vision is behind the
work of the supervisory committees when they scrutinize national legislation and
implementation practice of states against the standards of international law.
 That every state is bound by a different international global and regional layers of human
rights law, and the practice of a state is viewed and scrutinized by different international
institutions that might apply different standards.
 That international law has progressed from a law of coordination between states to a law of
close cooperation that reaches far into the realm of traditional domestic concerns and
international law has constitutionalized.
 That one of the features of Constitutionalization is the emergence of trans-governmental

networks, consisting of various international organizations and disaggregated components
of the state, which interact and cooperate in relation to a particular area.
 That within a network there would be a criss-cross interaction of norms with a possible
additional hierarchy.
 That this interaction would be both horizontal in nature (between different international
organizations with a functional overlap) as well as vertical (between the international
organization and the state).
 That it ultimately depends on the national constitution of the state whether and how
particular international treaties and the outcome of these networks enter the domestic legal
system and what is their position in those systems.
22
 That one area where Constitutionalization and trans-governmental co-operation is perhaps
clearest is the regime of international human rights law.
 That this is one of the rare regimes where states have accepted the compulsory, even if
subsidiary, jurisdiction of international bodies and, more importantly, have granted
exceptional rights for individuals to bring cases against them.
 That the ECHR is the “constitutional instrument of European public order in the field of
human rights.”163
– Loizidou v. Turkey (Preliminary Objections), App. No. 15318/89 (Eur. Ct.H.R., March
23, 1995) [75];
– Al-Skeini and Others v. the United Kingdom (Grand Chamber), App. No. 55721/07
(Eur. Ct. H.R., July 7, 2011) [141].
 That Slaughter warns, it is a system of vertical checks and balances as national courts adhere
to the supremacy of international courts – up to a point.
 That when an international tribunal moves too far out with the prevailing national
consensus, the national courts do not follow.
 That the practical tool of operation with which the ECtHR tries to overcome this dilemma is
the use of the margin of appreciation, whereby the member states are given room to decide
politically sensitive matters themselves.
 That the attitudes of the member states differ on the nature and direct application of
international treaties.
 That while the ECHR and its direct application today receive no major objections, in the case
of the CRC, views have differed.
 That as an example, Germany upon ratification made a declaration according to which the
CRC is not domestically applicable.
 That a number of reservations have been made to the CRC where states have limited the
direct application of certain rights, and there are states parties whose courts have initially
denied the CRC´s self-executive character.
 That the CRC has global acceptance; nevertheless, the influence of it is not as high as could
be expected when taking into account the number of ratifications.
 That it is a common frame of references for the other and more general international human
rights treaties and bodies on the issues of the rights of the child.
 That it has not gained the relevance some of the other UN treaties have gained as the rights
of the child, in general, are a conceptually difficult branch of law for the states as they often
require more interference with the family life, untraditional flexibility of the decision maker,
or application of general and relative principles.
23
 That it could also be that the existence of such a vast amount of human rights treaties and
supervisory bodies has scattered the focus of the states; then it is easy to use the CRC as a
pronouncement of general attention to children.
• Methods in Comparative Constitutional Law
 There are three ways of studying Comparative Constitutional Law as:
1. Normative Universalism
2. Functionalism. and
3. Contextualism.
 These two methods involve efforts to see how constitutional ideas developed in one system
might be related to those in another, either because the ideas attempt to capture the same
normative value or because they attempt to organize a government to carry out the same
tasks.
 The third method Contextualism comes in two variants which are Simple Contextualism
and Expressivism.
 Simple Contextualism insists that constitutional ideas can be understood only in the full
institutional and doctrinal context within which they are placed.
 Whereas Expressivism takes constitutional ideas to be expressions of a particular nation’s

self-understanding. Both methods raise questions about the coherence of the idea that
constitutional ideas can migrate (without substantial modification) from one system to
another.
• Methods in Comparative Constitutional Law…
 Universalism and Functionalism
 That Normative Universalism emerges primarily from the dialogue between those who study
comparative constitutional law and those who study international human rights.
 That the idea is simple: constitutionalism itself entails— everywhere—some fundamental

principles. Some of those principles involve human rights: the protection of some universal
human rights, such as rights to political participation, to equal treatment under the law, to
freedom of conscience and expression, and, for many human rights advocates, much more.
Others involve structures of government.
 That Universalists study Comparative Constitutional Law to identify how particular

constitutions instantiate those universal principles.
• Methods in Comparative Constitutional Law…
 That by comparing different versions, we can better understand the principles themselves.
Then we might be able to improve a domestic system’s version.
24
 That Comparative Constitutional study allows us to examine the different ways in which they
deal with the problem.
 That the functionalist approach to Comparative Constitutional Law is similar to the

universalist one to the extent that it tries to identify things that happen in every
constitutional system.
 That Functionalists believe that examining the different ways in which democratic nations
organize the processes of going to war and declaring emergencies can help us determine
which are better and which are worse processes.
• Realities of the Classical & Contemporary

Comparative Constitutional Culture
 That Constitutional Culture is an important element of the entire intellectual and cultural
heritage of a nation, of its collective memory, and its acknowledgment and absorption
possesses a great charge of self-cognizance for just about every nation.
 That the human community, as a system of social cohesion, dates back to about ten
millennia, whereas constitutionally regulated nation-states, in the modern sense of it, have
been in existence for almost two hundred years.
 That nevertheless the phenomenon of a ‘constitution’ is deeply rooted in history and its
emergence has also lead to the formation of certain constitutional culture with an imprint of
the value indicators and the legal mindset of the time.
 In Latin the word ‘constitution’ (constitutio) refers to founding, establishing. On the other
hand, not every act of founding or establishing something culminates in constituting a
‘constitution.’

Comparative Constitutional Culture…
 That the latter is typically characterized as the Fundamental Law (or the entirety of laws) of a
state, possessing ultimate legal power. The basic properties of such a law are determined by
the fact that it shall define:
- the foundations of state order;
- the safeguards for the granting and protection of civil and human rights and
fundamental freedoms;
- the system of public administration, its functions, organizational and procedural

principles;
- the legal boundaries for the exercise of political power, the enjoyment of individual
political, economic and social freedoms.
 That it follows from this analysis that the existence of constitutional culture shall at least be
preceded by the ability of the society to make 'terminal,' 'ultimate' decisions which 'set the
borders' as well as the existence of certain prerequisites which will allow for the
enforcement thereof.
25
 That it is noteworthy, from the perspective of substance, that in interpreting the notion
'constitution’ various authors assign particular importance to the fact that it determines the
state and social order, electoral system, principles for the formation and operation of bodies
of state authority of the country in question, as well as the human rights and freedoms.
 That beginning with the 17th century the British political establishment predominantly
perceived the notion of 'constitution' not as a uniform legal and political act underpinning
the existence of a state and individuals therein, but rather as a summation of principles and
approaches along the fundamental axis of relations between society and state which assure
the freedom of men, the supremacy of law, the restriction of power.

 That while comparing specific features of British and American constitutional cultures I find:
 American constitutional culture possesses three fundamental features:
1. An emphasis on rights on the expense of duties;
2. A central role of the judiciary in the protection of human rights;
3. The perception of the Constitution as a “living document,” a development in progress.
 Whereas British constitutional culture represents evolutionary, rather than revolutionary

tradition, and is anchored on gradual, historically shaped system of constitutional values.
 That at the dawn of human civilization customary and ethical norms were the basis of social
existence, together with spiritual values and canon, which were applied and preserved in
public co-existence as binding rules of behavior.
 That the emergence of constitutional culture is determined by the extent to which

“constituting” relations are legally appraised and become universally accepted rules of
behavior, irrespective of whether they are of customary nature or appear as an established
rule of behavior that is universally binding.

 That Constitutional culture, nevertheless, is most fully-fledged at a certain level of

civilization, when a well-realized demand emerges to establish, through the vehicle of public
accord, basic principles and rules of behavior as universally binding legal norms, and to abide
by these.
 That it is also necessary for constitutional norms to be evoked in real life, and for the
public to adopt a stable attitude towards them, forming real qualities of public
constitutional culture and elevating them to an organic component of national culture.
26
 That at such a stage constitutional culture acquires a new quality in the social and state
systems wherein, alongside the Constitution;
there also exists constitutionalism, where constitutional norms and principles are a living reality,
where an environment necessary and sufficient for constitutional democracy has come into being,
where constitutional norms have direct effect and there exists an effective system of oversight,
where the Constitution is not an instrument in the hands of the state, but a fundamental law of
civil society, a means to assure harmonious and sustainable development of the society, not only
through defining basic behaviour rules, but also drawing a border for the authorities, restricting
them by law.

 That in such case we deal with the notion of “democratic constitutional culture”
characteristic of democratic social systems where national and universal cultural features
are in harmony.
 That the Constitution and constitutionalism may not be viewed only from the narrow
legalistic perspective, in the context of pragmatic legal relations or abstract notions.
 That both are profound cultural phenomena, deeply rooted in interdependent value
systems, offering clear civilizational guidance and a level of their perception, comprehension
and cognizance.
 That it is in this framework of complementarity that constitutional culture in its turn

determines the choice of the model of constitutional democracy and the strategy thereof.
 That the level of constitutional culture is also determined by the level of constitutional
solutions, clarity and progressiveness of constitutional principles, solutions for their
implementation within a constitution, and the so-called constitutional “maturity” and
“taste.”

 That all systems share a commitment to similar constitutional norms and also experience
similar challenges in applying common constitutional principles to the realities of
contemporary culture.
 That in twenty-first century, economic and technological developments, demographic

changes, political, social, cultural, or religious issues, and world events often cross national
boundaries, creating the same sorts of constitutional friction in more than one constitutional
system.
 That, for example, nations committed to principles of equality have addressed the rights of
various subgroups, including ethnic and linguistic minorities, women, indigenous groups, and
non-citizens.
27
 That Nations committed to free expression have grappled with the effects of mass media,
the Internet, distribution of sexually explicit materials, disclosure of government secrets,
press invasions of privacy, hate speech, and saturated media coverage of high-profile
criminal trials.
 That Nations committed to constitutional reproductive and medical privacy have defined the
scope of those rights in the context of rapid advances in reproductive and medical
technology.
• Comparative Constitutional Analysis
 That Comparative constitutional analysis presupposes that there is a public good and right
political order to be achieved through judicial reason.
 That the appropriateness of comparative constitutional analysis is ultimately a reflection of

the interpretive posture of the advocate - judge, lawyer, or scholar - regarding the role of
the judiciary in democracy.
 That Comparative constitutional analysis may be appropriate as part of a view towards

interpreting the Constitution that relies heavily on a common law conception of
constitutionalism providing the Court with an expanded, quasi-legislative role.
 That in contrast, a textualist school of constitutionalism might resist the utilization of

comparative law in order to exercise judicial restraint so as not to "impose upon those
people norms that those people themselves have not accepted."
 That the uses of comparative constitutional law so as to ensure that the law is not usurped
from its organic ground.
• Comparative Constitutional Analysis: Examples
 Roper v. Simmons, 543 U.S. 551 (2005)
In an opinion by Justice Kennedy, the Court would rely in part on comparative precedent in
ruling that the execution of juvenile offenders violates the Eighth Amendment’s proscription against
cruel and unusual punishment having analyzed the foreign law thereupon.
 Lawrence v. Texas, 539 U.S. 558 (2003)
Justice Kennedy’s majority opinion used comparative precedent to support its ruling that
criminalization of consenting adult same-sex relations violates the Due Process Clause while noting
the decisions of the European Court of Human Rights against the criminalization of consenting adult
same sex relations in the United Kingdom, Ireland, and Cyprus, and emphasizing that other nations,
too, have taken action consistent with an affirmation of the protected right of homosexual adults to
engage in intimate, consensual conduct.
 Atkins v. Virginia, 536 U.S. 304 (2002)
In an another death penalty case, the Court relied in part on foreign materials to prohibit the
execution of the mentally retarded while discussing the international community’s disapproval of
imposing the death penalty on mentally retarded offenders
• CASTIGATION
28
 That this trio of prominent and controversial human-rights-oriented decisions involving
comparative precedent convinced conservative Court critics that the use of such precedent
was part of an activist judicial agenda to both “globalize” and “liberalize” the U.S.
Constitution. Many of them are now determined to exterminate this perceived abuse of
judicial power.
 That in his September 2005 confirmation hearings, Judge John Roberts offered two principal
reasons for opposing the use of comparative constitutional law. First, he claimed that the
democratic process is circumvented when judges base their decisions on precedent by
foreign judges who were not appointed or confirmed by representatives accountable to the
American people.
 That if we are relying on a decision from a German judge about what our Constitution
means, no President accountable to the people appointed that judge and no Senate
accountable to the people confirmed that judge, Roberts said. “And yet he’s playing a role in
shaping the law that binds the people in this country.” Second, Roberts raised concerns
about unbridled judicial discretion.
 That in Roberts’s view, allowing judges to use foreign precedent could encourage cherry-
picking of foreign decisions that were favorable to a particular judge’s personal views.
• MY TAKE
Many of the world’s leading constitutional systems have been in business long enough to develop
significant and relatively mature law on constitutional questions that resonate with issues in the
United States. There is, for example, a robust transnational jurisprudence on such issues as:
 That reproductive freedom, freedom of speech, freedom of religion, racial and ethnic
equality, language rights of minorities, gender equality, sexual orientation equality, privacy,
constitutional limits on punishment, the right to counsel for the indigent, and the rights of
the accused etc.
 That an international jurisprudence is also developing on such structural issues as separation

of powers and the rule-making authority of government agencies, war and emergency
executive powers, and even (to a limited degree) federalism.
 That exploring the jurisprudence of other nations on these and other similar constitutional
questions, one is struck by the similarity to U.S. constitutional law. This similarity has at least
two sources: a commitment to common constitutional norms, and the need to apply them
to comparable cultural, social, political, and economic developments.
 That while the various world constitutional systems reflect important differences in
language, structure, and history, they are often committed to the same basic principles as
the U.S. Constitution.
 That this is especially true in the field of human rights because the U.S. Constitution has
served as a model for human rights guarantees around the world.
 That more modern constitutions elsewhere have often expanded beyond the U.S.
Constitution, including explicit guarantees that the U.S. Constitution lacks, many have looked
(often explicitly) to the U.S. Constitution for guidance when crafting their own Constitutions.
29
Because their constitutional law embraces comparable basic human rights, it encounters
similar constitutional questions etc.
• Pertinent Questions &

Determinants
 Should constitutions contain a justiciable Bill of Rights?
 Does a Bill of Rights transfer too much power to the judiciary and judicialize politics?
 Should a Bill of Rights be an ordinary statute, a special statute that presumptively prevails
over inconsistent laws, or an entrenched part of a constitution that asserts its supremacy
over ordinary law?
 What should the institutional arrangements surrounding the enforcement of a bill of rights
be?
 Should countries adopt judicial supremacy or combine judicial review with legislative
supremacy?
 Should rights review be the exclusive responsibility of the courts, or the joint responsibility
of the executive, legislative and judicial branches?
• Pertinent Questions &

Determinants…
 Does dispersed responsibility for rights review create an inter-institutional dialogue over
matters of rights protection?
 What rights should a Bill of Rights contain? In addition to traditional civil and political rights,
should it also entrench socio-economic rights?
 Should it protect rights to private property, and if so, to what extent?
 What should the scope of application of a bill of rights be?
 Should a bill of rights only have vertical effect to govern relations between citizens and the
state, or should it also apply horizontally to private relationships?
 How should a bill of rights be interpreted?
 Should courts have recourse to comparative and international law in constitutional

interpretation, and if so, how?
• THE INFLUENCE OF
COMPARATIVE CONSTITUTIONAL LAW
 Comparative Constitutional Law is a tool that aids in constitutional and statutory

interpretation. This assistance may work on three levels:
 The First Level concerns interpretive theory. Comparative law helps the judge better
understand the role of interpretation and the role of the judge therein. To exemplify the
point, consider the interpretative status of the intent of the creator in understanding
30
constitutions and statutes. Before judges decide their own position on the issue, they would
do well to consider how other legal systems treat the question.
 The Second Level on which judges rely on comparative law is connected with democracy's
fundamental values. Democracies share common fundamental values. Democracy must
infringe certain fundamental values in order to maintain others. It is important for judges to
know how foreign law treats this question and what techniques it uses. Does it employ a
technique of balancing or of categorization? Why is one technique preferred over another?
Every legal system grapples with the issue of constitutional limitations on human rights.
What are these limitations and what technique was used to reach them? What are the
remedies for violating an unlawful order and how can they be determined?
• THE INFLUENCE OF
COMPARATIVE CONSTITUTIONAL LAW…
 The Third Level of aid provided by comparative law concerns the solutions it offers to
specific situations: How protected is racist speech? Is affirmative action recognized? How
does the foreign system deal with terrorism?
 Democratic countries have several fundamental principles in common:
 That legal institutions often fulfill similar functions across countries. From the purpose that
one given democratic legal system attributes to a constitutional arrangement, one can learn
something about the purpose of that particular constitutional arrangement in another legal
system.
 That comparative constitutional law is a good source of expanded horizons and cross
fertilization of ideas across legal systems.
 That even in the absence of any direct or indirect influence of one constitutional text on
another, there is still a basis for interpretative inspiration. An example is where a
constitution refers expressly to democratic values or democratic societies.
 That even without such a reference, the interpretative influence of comparative law is
substantial. This is the case with regard to determining the scope of human rights, resolving
particularly difficult issues such as abortion and the death penalty, and determining
constitutional remedies.
•
EXIM POLICY IN
Comparative Constitutional Law
 That the conceptual issues associated with the ideas of constitutional borrowing, lending,
importation, and re-importation and exportation. The example of legislator standing is
intended to demonstrate how South Asian or U.S. constitutionalists might productively draw
on foreign constitutional experience and what contextual issues must be evaluated in
determining how a foreign constitutional experience will be translated in another culture.
 That, By necessity, much of the theorizing about constitutional borrowing is quite

speculative. Nonetheless, even if the study of Comparative Constitutional Law proves not to
31
have the kind of reciprocal pay-off about constitutional policy that we might hope for, it still
may be useful as part of a lawyer's liberal education.
 That the use of comparative law for the development of the common law and the
interpretation of legal texts is determined by the tradition of the legal system. Israeli law, for
example, makes extensive use of comparative law. When Israeli courts encounter an
important legal problem, they frequently examine foreign law. Reference to law from the
United States, the United Kingdom, Canada, and Australia is commonplace.
•
EXIM POLICY IN
Comparative Constitutional Law…
 Those with the linguistic ability also refer to Continental European law and, sometimes, we
use English translations of Continental European (mainly German, French, and Italian) legal
literature.
 In countries of the British Commonwealth, there is much cross fertilization. Each such nation
refers to United Kingdom case law. United Kingdom judges refer to Commonwealth case law
and Commonwealth judges, in turn, refer to each other's case law.
 The Supreme Court of Canada is particularly noteworthy for its frequent and fruitful use of
comparative law." As such, Canadian law serves as a source of inspiration for many countries
around the world.
 Generous use of comparative law can also be found in the opinions of the South African
Constitutional Court. In South Africa's Constitution, it is explicitly determined that:
When interpreting the Bill of Rights, a court, tribunal, or forum-
(a) must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b) must consider international law; and,
(c) may consider foreign law.
• Research Design in
Comparative Constitutional Law & Studies
 That the content in the field of comparative constitutional law has remained remarkably
under-explored and under-theorized.
 That a systemic discussion of the relationship between the analytical aims or intellectual
goals of the field, and the research design and methods of comparison, is urgently required.
 That the problems of context, relativism, and systemic selection biases as hindering
generalization in comparative constitutional law must be addressed.
 That an impediment to theoretical elevation and coherence of comparative constitutional

law with respect to theory-building through causal inference.
32
 That despite tremendous scholarly advancements in the comparative study of constitutional
law and institutions, explanation-oriented constitutional scholarship—whether based on
formal modeling, causal extrapolation, historical narrative, or ethnographies—is not easy to
come by.
• Research Design in
Comparative Constitutional Law & Studies…
 That more specifically, comparative constitutional law scholarship often overlooks (or is
unaware of) the methodological principles of controlled comparison, research design, and
case selection deployed in the human sciences.
 That the comparative constitutionalists should settle on a set of four notably more sensible
guiding principles:
– define clearly the study’s aim—descriptive, taxonomical, explanatory, and/or

normative;
– Articulate clearly the study’s intended level of generalization and applicability, which
may range from the most context-specific to the most universal and abstract;
– encourage methodological pluralism and analytical eclecticism when appropriate;

and ensure that the research design and methods of comparison reflect the
analytical aims or intellectual goals of specific studies, so that a rational, analytically
adaptive connection exists between the research questions and the comparative
methods used.
• Constitutional Reasoning in
Comparative Constitutional Law
“Efficacious comparison still seems to me to rest on a cast of mind. More than from any particular
method, theory, or topic, comparison flourishes from an imaginative openness to discovery, from an
ability to recognize when assumptions need to be challenged, from a willingness to probe
expectations unmet, and from the capacity to move across established conceptual boundaries.”
--Raymond Grew, 2006
• ASSEVERATIONS
Man perfected by society is the best of all animals; he is the most terrible of all when he lives without
law, and without justice.
--Aristotle, Greek philosopher
The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God's Book
(Quran) and the Sunnah of His Prophet (Muhammad), God's prayers and peace be upon him, are its
constitution…
33
--Article 1 of the Basic Law of Saudi Arabia
• ASSEVERATIONS…
Even if the constitution includes the Ten Commandments, we will oppose it.
--Aryeh Deri, Israeli Politician
Our new Constitution is now established, and has an appearance that promises permanency; but in
this world nothing can be said to be certain, except death and taxes.
--Benjamin Franklin,
US Polymath and one of the US Founding Fathers
• THIS IS THE BEGINNING
WE SHALL HAVE A TRAJECTORY TRANSCENDING CONSTITUTIONAL UNDERSTANDING BEYOND

COMPARATIVE CONSTITUTIONAL LAW
--THANK YOU VERY MUCH FOR BEING WITH ME
34

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• Faculty of Legal Studies

South Asian University

• COMPARATIVE CONSTITUTIONAL LAW OF THE SAARC NATIONS

• Comparative Constitutional Law; Concept and Nature, The Resurgence of Comparative

• Dr. Nafees Ahmad

 What is Constitution and why do we have it?

 Why this paper? What is the rationale of this paper?

 Comparative Constitutional Law of SAARC Countries–Some Basic Issues

 Nation-state Constitution versus Global Constitution?

 What is comparativism? What are the dimensions and implications of comparativism?

 What is Comparative Constitutional Purposes?

 What is the utility of the Comparative Constitutional Law of SAARC Nations?

 How to evolve a Collective Identity with Regional Consciousness of Comparative

 Some reflections on the forging of a new constitutional jurisprudence in South Asia?

 What are the Independent Constitutions of Global Institutions?

 Should there be a Unitary, Cosmopolitan and Global Constitution?

• CCLSAARCN: GOALS AND AIMS

• CCLSAARCN: GOALS AND AIMS…

 Developing Better Intellectual and Juridical Understanding of Other Systems

 Developing Better Understanding of One’s Own System.

 Responding to Doctrinal or Textual Questions

 Attending to Challenges of Constitutional Comparisons

 Analyzing the Interdependence of Constitutional Provisions

 Appreciating the Complexity of Historical Context

 Conflating Normative and Positive Claims

 Contextualizing the Expressionism and Constitutions of SAARC

 Examining Concepts & Legal Structures from Comparative Perspective

 Dismantling the miasma of Constitutional confusions in SAARC

 Generating, germinating and gestating a Constitutional commonality

 That epistemologically speaking in medical terms, Constitution refers to an individual person

• COMPARATIVE CONSTITUTIONAL HISTORY

• COMPARATIVE CONSTITUTIONAL HISTORY…

• COMPARATIVE CONSTITUTIONAL HISTORY…

• Comparative Constitutional Law Renaissance

 That Comparative Constitutional Law’s ambivalence towards the social sciences,

• Comparative Constitutional Law Renaissance…

• WHAT ARE CONSTITUTIONS?

-S.E. Finer In his Five Constitutions,

-Section 2 of the South African Constitution (1996)

• WHAT ARE CONSTITUTIONS?...

 A constitution is a thing antecedent to a government, and a government is only the creature

-Thomas Paine’s The Rights of Man

-William G. Andrews, American Scholar

-S.E. Finer, Vernon Bogdanor and Bernard Rudden

• WHAT ARE CONSTITUTIONS?...

-A single Constitutional Document

-Supplementary Charters of Human Rights

-Or a series of basic laws and unwritten conventions

• WHAT ARE CONSTITUTIONS? MY TAKE

 The Constitution is an infallible, indelible and inalienable fundamental law of a geo-political

 Nature and Purpose or Function of Constitution

 Establishes Basic Framework and underlying Principles of Government− the purpose of a

 Meaning of Constitution Law

 (1)As to their origin and history:

 (a)Conventional or enacted.− one which is enacted by a constituent assembly or

 (b)Cumulative or evolved.− like the English Constitution, one which is a product of

 (2) As to their form:

 (3) As to manner of amending them:

 Advantages and Disadvantages of a Written Constitution

 It has the advantage of clearness and definiteness over an unwritten one.

 Its disadvantage lies in the difficulty of its amendment.

 Requisites of a Good Written Constitution

 (1)As to form a good written constitution should be:

 (a)Brief− because if a constitution is too detailed, it would lose the advantage of a