Comparative Constitutional Law - Appunti

Comparative constitutional law - Dani

Programme

• 1. What is comparative constitutional law
• 2. Constitutions: definitions and classifications
• 3. Constitution-making and constitutional amendment
• 4. Territorial organisation of political power
• 5. Forms of government
• 6. Parliaments and political decision-making
• 7. The judiciary
• 8. Judicial review of legislation
• 9. Constitutional rights

Syllabus cheat sheet unit 1

What is comparative constitutional law

Definitions

Comparative constitutional law is an intellectual activity aiming at the identification, explanation, classification (taxonomy) and evaluation (not necessary more of an assessment on the functionality of the systems of law) of similarities and differences between selected constitutional systems.

A constitutional system is the structure of a legal and political order (usually, national) as resulting from its fundamental laws (look at both rules and political + social environment, constitutions are influenced by ideologies).

Constitution is the set of fundamental norms establishing and regulating government.

Origins

Aristotle (Politics, a work based on reviews on 158 diff constitutions from his age), Machiavelli (developed a set for good gov based on experience and records of constitutional experiences) and Montesquieu (whose Spirit of the Laws observed different forms of political views and their advantages and disadvantages) are the source of inspiration for theoretical work (sort of the forerunners).

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American and French revolutions were however the main sources of inspiration for constitutional design (for the founding fathers they based the constitution on previous experiences sorting out bad and good parts).

With legal positivism (18th century), legal positivism (juxtaposed with natural law) and self-referential turn of public law: declining interest in comparative studies, emphasis on legal exegesis (rule of jurists is less theoretical, they interpret man-made laws of their own laws so compar. const. law remains in the background, carried out by those who study political science and the like).

Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law, it emphasises the conventional nature of law—that it is socially constructed, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law.

Natural law theory

Natural law theory: the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings and the nature of the world, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards.

Exegesis

Exegesis: critical explanation or interpretation of a text, especially of scripture.

Post WWII revival: decline of legal positivism and normative/ideological turn of the discipline (Carl Friedrich, scientist and lawyer, was a central figure, his activity was marked by a heavy ideological bias towards the western) (if we obey to the law we also have to obey totalitarian law?, so revival of natural law).

This is a paper on federalism which also contains a chapter on Carl Friedrich.

Lot of circumstance which helped: the cold war, the study incr. to affirm the superiority of the western legal tradition vs the russian socialist legal tradition) (shift from political institutions to the ideological aspects like human rights).

The rise of comparative constitutional law post 1989 (fall of the wall, which kickstarted a prolific phase of constitution making esp. in eastern and central Europe and therefore comparative constitutional studies): a. assisting transition to constitutional democracy (transplant of ideas from UK + USA) b. internationalisation of constitutionalism (set of international orgs like the EU).

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Borrowed concepts from constitutions (like the US) to upgrade their function (like with human rights which were created from common and shared constitutional traditions since an original Bill of Rights wasn't created)).

Subjects and who

Scholars, constitutional adjudicators (judges which are entrusted with judiciary review legislation, so checking whether or not legislations comply with the constitution) and constitutional legislators (those who write and amend constitutions).

The participant perspective: instrumental approach (comparative constitutional law as a resource for constitutional design or constitutional design or constitutional interpretation) so internal viewpoint (const. adjudicators and const. legislators).

The observer perspective: descriptive and prescriptive approaches so external viewpoint (no judgement but to explain diff. and similarities) (scholars).

Purposes

Knowledge and educational aims.

a. Better understanding of constitutional law and concepts (constitutional concepts) (e.g. open (as long as speech doesn't threaten people is allowed so US) and militant (how the germans dismantled the old totalitarian party) approaches to free speech).

b. Better understanding of one's own constitutional system (great way to understand it if you aren't a scholar and to have a more comprehensive view) (e.g. when spain drafted their constitution in the seventies they relied on the italian (look up art. 9.2 of the spanish constitution which is a reiteration of art. 3.2 of the italian constitution on substantive equality (?)) and german constitution experience (especially the german one) as an example also due to shared experience, so by looking at those two you can understand the first (formal equality considers equal situations, substantive quality considers obstacles (usually created by previous systems of inequality and discrimination) and removes them).

Theoretical and critical goals

Theoretical and critical goals (two different ways of seeing it).

a. Distilling commonalities in different constitutional systems (e.g. rule of law checklist by the Commission of Venice, which is a body of the Council of Europe (check, not to be confused with the EU, it includes more countries, 47, and the court in in Strasbourg) made up by constitutional scholars which meet regularly to discuss constitutional issues in the participating countries they created some basic guidelines to respect the rule of law (created for the first time in the british const. it is public power habitual not arbitrary (check)) which should be followed by all the members even with all the differences between the countries to be allowed in the group (however they were made up distilling the similarities/commonalities between all of them so it is possible to follow them) (universalists).

b. Emphasising the embedded nature of institutional settings, their distinctiveness (esp. useful against hegemony) (e.g. global spread of proportionality (invented in Prussia in the 1870 but was properly used and quickly spread after the war, however in different countries proportionality has different characteristics (check the definition)) so even with things that are shared).

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Globally there is always some differences due to institutional settings) (contextualists).

Resource for constitutional interpretation

Resource for constitutional interpretation (constitutional judges).

a. Constitutions enabling the use of foreign law (which can lead to unpredictability) (art.39(1) South African Constitution art.46 Zimbabwe Constitution).

b. Häberle and comparative law as the fifth interpretative method (the last one used to draw inspo from other systems of law, like human rights which are by some considered universal and so are useful, this is a cosmopolitan approach but it is a controversial one) (alongside textual, systematic = interpretation on systematic provision basing one self on the legal provision which contribute to understand the meaning of the first one, historical, teleological = in the light of its original purpose/goal).

c. Use in the EU ("common constitutional traditions" + the Council of Europe's Bill of Rights + judges = EU Bill of Rights, the rules are decided case by case still basing themselves on the fore-mentioned elements).

d. Use in the ECHR (Council of Europe) (created the minimal bare standards on civil human rights, it wasn't mean to protect or unify, but in the 90s they stated to be more creative and to improve and increase the level of protection for these rights (like the dismissal of homosexual soldiers from the british army, which was ruled as a violation of human rights) "European consensus" (if a majority of the countries says it's okay then it's okay but this can also work against human rights if the number of countries isn't big enough, through the margin of discretion) and "margin of appreciation" doctrine).

e. US debate on the use of foreign law (Lawrence v. Texas (2003) (one judge also used the Strasbourg argumentation, a wildly debated move, accused of cherry picking the more favourable norms about sodomy), Roger v. Simons (2005) (outlawed death penalties for juvenile convicts)).

Resource for constitutional engineering

Resource for constitutional engineering.

a. Circulation of models (borrowing, migration of constitutional ideas, transplants between two constitutional systems) via:

• Reputation (which makes a const. system more used as a model and therefore more successful, e.g. the New Deal, a constitutional experience which put together democracy and capitalism in a very successful way, the state intervened in economy to ensure a proper distribution of wealth, the New Deal itself was inspired by Europe and how it worked, and those same ideas after the war were repackaged and sold to Europe; e.g. the US presidency was highly influential in the creation of south american states).
• Imposition (a more violent method, usually after a war the winning country force changes in the constitutional systems of the losers, e.g. Japan (constitution written with american military oversight) and Germany after the war were given the Frankfurt document as a set of requirements (protection of human rights, democracy and federalism) on the new constitution; e.g. colonisation, for example Canada, shaped in some ways on the english constitution (sovereignty of Parliament, e.g. Afghanistan, where an imposed constitution is being rejected).
• Conditionality (not an imposition but they do require some degree of pressure being put on the receiving countries e.g. in 1989 after the fall of the wall and the Soviet Union eastern Europe were pressured to comply with a number of conditions, the Copenhagen criteria (market economy, democracy, rule of law, protection of minorities..., it is a degree of homogeneity), to enter the EU).

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b. Positive and negative influences of judicial review constitutional models (e.g. Marbury v Madison (1803) (introduced and consolidated in America) and United Mizrahi Bank (1995) (took the first one's judgement and used it); Lochner v State of New York (1905) (on regulation on working time for bakers was brought to the Supreme Court, which decided that it breached the Constitution, this negative precedent allowed later the worsening of the Great Depression, and so after a whole lot of discussion judiciary review of legislation was avoided, even in India this was a reason to not introduce judiciary review to avoid such a situation) and Keegstra (1990) (a case decided by the Canadian supreme court, he was a mayor in a town near Alberta and a teacher too, who started to teach antisemitic ideas and was prosecuted for hate speech, a criminal offence in Canada, he pleaded freedom of speech and foreign law (the nazi march authorised by the Supreme Court), even here there was a debate (on one side they thought that prosecuting him was right, on the other they thought that prosecuting him would only give him a broader audience), at the end the court decided to prosecute him) so there is no clear and right idea on which ideas to borrow, especially after Lochner.

Judicial review of legislation is the power of courts to decide the validity of acts of the legislative and executive branches of government. If the courts decide that a legislative act is unconstitutional it is nullified. The decisions of the executive and administrative agencies can also be overruled by the courts as not conforming to the law or the Constitution.

c. Outcomes of legal transplants:

• Adoption (migration + acceptance e.g. United Mizrahi Bank (1995)).
• Rejection (e.g. rejection of judicial review in Europe after Lochner).
• Atrophy (the idea doesn't take root because of national and cultural reasons e.g. Weimar Republic tried but so much criticism followed that they gave up).
• Adaptation (most used, transplant + appropriate modification for local circumstances e.g. in continental Europe judiciary review power is only given to constitutional courts; e.g. Canada said that Parliament wasn't legally bound by the Constitution, but then some guidelines had to be adopted and the law had to adapt; e.g. in some countries (with sovereign Parliaments) weak judiciary review was implanted).

On uses and misuses of comparative law (O. Kahn-Freund)

Worked as a judge during the Weimar Republic, had to flee with the rise of nazism.

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He discussed the merits of comparative law in this lecture, published in the modern law review in 1974.

Concern for the use of comparative law as a tool for legislative reform (notably, use of foreign models to promote social change), the three uses of comparative law (international unity, cope or consolidate changes that have already occurred, produce social change (to modify society)).

The difference between the last two raises the question: are legal institutions entities to be accepted/rejected by a living organism (kidney) or pieces to be inserted in a mechanism (carburettor), this depends on the degree of transferability (the lower it is the more like a human body it is and the law is embedded in society itself, the higher it is the more it works as a mechanism).

This is a reverse correlation between transferability and embeddedness.

Depending on the level of transferability of a legal institution, we may distinguish uses or misuses of comparative law.

The core of the argument is on those degrees of transferability, where are constitutional norms and systems, there are more answers: the first one is based on:

• Montesquieu's thought says that constitutions are more embedded than transferable (low level of transferability of lois politiques et civiles) since they are based on many context-dependent variables (geography, climate, population density, religion, social and economic conditions, etc.) all based on the nation itself.
• Today due to industrialisation group of interest and globalisation the situation has changed, and the variables have changed too, Kahn Freund talks about the difference between constitutions of the eastern block and the western block (not effective today), the difference between types of democracy and, most important, the influence of groups of interest (churches, trade unions, any group between the State and the population) (their consensus is key, especially in this era, during a transplant, they could reject it or facilitate the process).

Group organized to pursue specific interests in the political arena, operating primarily by lobbying the members of legislative bodies.

In contemporary world: processes of industrial, social and cultural assimilation, and increased political differentiation (key role of organised interests in making and maintaining legal institutions).

Examples of transplantation of legal institutions with high (marriage and family law, however this has some exceptions e.g. same-sex marriages) and low (labour law and procedural law) levels of transferability.

The degree of transferability is contingent (e.g. marriage going to the other side of the constitution) and it may be contested (there is no set degree of transferability, it depends on political and cultural variables).

Object

Institutions of government and relationships government-individuals.

Macro (confront and identify similarities between entire constitutional systems) and micro comparisons (confront and identify similarities between smaller parts).

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To cope with specific problems.

Law in the books and the law in action (reference to case law and constitutional practices) (e.g. during Marbury v Madison the Supreme Court creates judicial review, it wasn't explicitly written in the Constitution, e.g. in Germany the catalogue of social rights weren't explicitly written down in the Constitution but the Bundesverfassung interpreted art. 1 of the constitution on human dignity to create the catalogue) (this is also about politics and how institutions develop principles in a certain way (de Gaulle and the French constitution example)) not all law is written down, but that doesn't make it any less important.

Methodologies

Universalism: search for good principles in constitutional systems viewed as manifestations of universal principles (highlighting the similarities that tell us something important about theoretical constitutional law which can bring one to cherry-picking of law which can lead to overlook certain important cases).

Historical approach: focus on evolution, influences, migration of constitutional ideas and their adaptation (evolution is the mindset).

Functionalism: focus of common functions and range of strategies employed to cope with them (emphasis on convergence, open to transplant) (e.g. investigation on the head of state in different heads of state or common problems e.g. protection of human rights) (this approach emphasises the convergence of constitutional systems, which can be useful for eventual transplants or to find solutions to borrow for an eventual problem) (this presupposes the constitution as a mechanism, but this can work only if the level of transferability is high enough).

Contextualism: institutional settings viewed as highly embedded and path-dependent on initial institutional.