The Comparative Constitutional Law Enterprise

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The Comparative Constitutional Law Enterprise

  1. 1. Willamette Law Review Summer 1994 Essay *509 THE COMPARATIVE CONSTITUTIONAL LAW ENTERPRISE Paul J. Magnarella [FNa] Copyright (c) 1994 Willamette Law Review; Paul J. Magnarella I. INTRODUCTION Not long ago, Konard Zweigert and Hein Kotz somewhat exaggeratedly claimed that “comparativists all over the world are perfectly embarrassed about their methodology, and see themselves as being still at the experimental stage . . . . There has been little systematic writing about the
  2. 2. methods of comparative law.” [FN1] In this Introductory Essay, I offer some humble musings about comparative constitutional law theory and methodology. Because comparative constitutional law is a sub-set of comparative law, much of what I write here applies to both. Historically, comparative law scholars have made at least four major contributions to jurisprudential knowledge. Some have engaged in the study of foreign law with the aim of providing legislators with information and insights about other legal *510 systems so that they might be more enlightened when drafting their own laws. Many academic scholars have conducted comparative studies to expand on legal knowledge and make it available for anyone who can beneficially use it. Both types of research have contributed to an escape from legal ethnocentrism by showing how other societies have fashioned different legal means to accomplish similar ends or to obtain superior results. In addition, as Bernard Grossfeld points out, comparative legal studies have and can serve as an international seismograph by informing us of how states at the cutting edge of new scientific, commercial, and sociopolitical developments and crises cope with them legislatively and judicially. [FN2]
  3. 3. II. CONSTITUTIONALISM One of the key concepts developed by comparative constitutional scholars is “constitutionalism.” Thomas Grey maintains that it “is one of those concepts, evocative and persuasive in its connotations yet cloudy in its analytic and descriptive content, which at once enrich sic and confuse sic political discourse.” [FN3] A key identifying criterion of constitutionalism is the existence of limited government under a higher law. By definition, every state, even one with a dictatorship, has a constitution -- a set of legal norms and procedures that structure its legal and governmental systems. This, however, does not necessarily imply the existence of a constitutional document. Further, the mere existence of a constitutional document or a constitution, as defined above, is not equivalent to the existence of a state of constitutionalism. In the absence of the ruling elite's commitment to limited governmental powers under the rule of law, a state may have a constitution without constitutionalism. In such a case, comparativists would label its constitution “nominal,” rather than “normative.”
  4. 4. If a state's constitution truly represents its higher law, certain consequences follow. The constitution legitimizes and sets the parameters for governmental executive, legislative, and judicial power. Statutory law is subordinate to the constitution, and *511 governmental actions must remain within the confines imposed by the higher law. For example, in his contribution to this volume, Professor Nafziger writes that “a constitutional culture of libertarianism, federalism, judicial review, inherent executive powers, and collaboration with Indian tribes helped shape the distinctive regime of cultural heritage law in the United States.” [FN4] He further notes that these components of American constitutionalism do not arise from the constitutional text itself, “but from an abiding set of principles, norms, and expectations about the constitutional order.” [FN5] When properly employed, as it is by the contributors to this volume, the constitutionalism concept certainly has utility. In much of the comparative constitutional law literature, however, the concept has had at least two drawbacks when utilized as an operational tool. First, its absolute character leads to a simple dichotomy: a legal system either is characterized by constitutionalism or it is not. The concept does not easily accommodate variations in degree of limited government and respect for the rule of law. The
  5. 5. second drawback concerns many scholars' proneness to reify the concept, as the following two examples taken from a popular book on the subject demonstrate: “Constitutionalism transcends the people and claims for itself the sanctity of a higher law.” [FN6] “ ‘The Constitution imposes restraints on government as a function of constitutionalism . . . .’ ” [FN7] In both quotations, the author reifies constitutionalism, and loses sight of the fact that the term is simply a label characterizing a situation in which the ruling elite and a significant proportion of the general population demonstrate respect for certain politico-legal principles that structure and limit governmental powers. Scholars and students should always keep the politically powerful in focus because their agendas and actions have serious consequences for the legal system and the people they govern. *512 III. LEVELS OF COMPARISON With respect to scope, comparative research topics can be conveniently divided into two categories: micro-comparison and macro-comparison. Scholars working at the micro-level, who favor a functional approach, typically
  6. 6. begin by focusing on a socio-legal problem ( e.g., rights of minors to abortions) and proceed to examine the institutions, practices, rules, and procedures by which the problem is handled in different societies. Scholars favoring an institutional approach generally begin their research by selecting apparently comparable legal institutions in different societies and then comparing them. Through their studies, we have learned that seemingly identical institutions ( e.g., supreme court) or concepts ( e.g., contract) rarely have the same operational meaning in different legal systems. As early as the eighteenth century, Charles de Montesquieu, the father of comparative law, concluded that the character of each society's law was molded by that society's geography, social structure, culture, government, and history. Because this set of conditions is unique, he claimed that no two societies could have the same law. [FN8] In her contribution to this volume, Professor Callahan notes that because of the markedly different agendas of Indian and American drafters of their respective constitutions, shared textual terms can have profoundly different meanings. [FN9] Even in geographical and legal areas of presumed convergence, such as Western Europe with its common state duties under the European human rights convention, divergences exist in the applications of identical convention
  7. 7. provisions. The European Court of Human Rights has repeatedly upheld interstate differences in the implementation of identical convention duties through the use of the jurisprudential concept termed the “margin of appreciation.” The court has justified its position by reasoning that, “it is for the national authorities to make the initial assessment” of whether a particular domestic law or practice conforms to the requirements of the Human Rights Convention. [FN10] The Court has held that national authorities are entitled *513 to a margin of appreciation to make this judgment, because they are in a better position than an international tribunal to assess those local legal and cultural conditions that characterize the life of their community. [FN11] Macro-comparisons of entire legal systems involve the selection of major characteristics ( e.g., secular versus religious law) by which various legal systems are typologized. [FN12] Such macro-comparisons may reveal salient differences between legal systems, but discovering the reasons behind the differences requires the methods and theories of social science. IV. THEORETICAL FRAMEWORK The ensemble of tools that researchers need for comparative constitutional law study includes personal philosophies of law and human
  8. 8. nature and a theory of societal dynamics. In addition, just as it is essential to know at least one language well before engaging in comparative linguistic analysis, it is essential to know at least one legal system well before engaging in comparative legal analysis. Once researchers decide which philosophies and theories they will bring to bear on their analysis, they should make them explicit because these and other personal background variables will influence the quality and conclusions of their research. Whether the researchers are advocates of a natural law philosophy or dialectical materialism; whether they are students and followers of such philosophically diverse scholars as Fuller, Hart or McDougal; whether they are members of a self-designated, exploited minority or of the ruling class; whether they are believers in the innate goodness of humankind or in the natural theory of self-interest; or whether they choose their comparative topic to publish in an elite journal, advise a state legislature, or debunk a rival scholar's jurisprudential theory, all these elements will influence the character and conclusions of their comparative study. We view data through the filters of our conscious and unconscious presumptions. There is no innocent eye, untainted by bias, preconceptions, or explicit theory. To believe otherwise, is
  9. 9. *514 to fall victim to what Nietzsche called the fallacy of the immaculate perception. [FN13] With respect to a subject society, those factors influencing the nature of its legal system include: the sociocultural, economic, and political history of the constituent population; the goals, agendas, and strategies of the society's politically and economically powerful elite; the role of the military within the political and economic system; the society's prevailing religious and political ideologies, norms, and values; and the relationship among the society's technology, demography, resources, economy, and external but impinging sociopolitical powers ( e.g., states, regional organizations, etc.). Put slightly differently, every sociocultural system has its peculiar law that results from a unique mix of historic and contemporary social, cultural, economic, demographic, environmental, and political forces. An accurate understanding of constitutions or legal texts requires a knowledge of all these forces. Grossfeld points out that a conceptual framework helps comparativists organize their studies and find the right questions to ask. [FN14] In the abstract, there are no right or wrong first questions, only more or less useful ones, depending on whether the comparativists' goals are to enlighten legislators, colleagues, students, or the general public. Comparative scholars
  10. 10. usually begin their investigations by posing a question or stating a testable hypothesis. The “right” or “wrong” questions come after the first arbitrary question that specifies the purpose of the study. A theoretical framework should enable the researcher to generate testable hypotheses and direct research. For example, one assumption built into my own human materialist paradigm [FN15] is that laws are created by persons in positions of political power to promote certain policies or achieve certain ends, whether they be social, political, economic or cultural. This leads to some basic questions: Whose policy? Policy to benefit whom? How effective is the law in achieving the policy? What are some of the latent or unintended consequences of the law? Answers to these questions may consist of a combination*515 of efficient and final cause explanations based on the analysis of sociocultural, politico-economic, and personality factors. Because law is about people enmeshed in societal-environmental contexts and exposed to push-and-pull vectors, a comparative constitutional law theoretical framework must be able to deal with both etiology (causal forces and efficient cause explanations) and teleology (motivational forces and final cause explanations). A society's peculiar history, the way its boundaries were
  11. 11. drawn, and the extent to which its pre-state population constituted rival factions or shared a common identity as a people, have important bearings on the character of its governance and law. Questions arise such as: Whether a society is comprised of a large mix of peoples of different ethnicities and religions, or a small, homogeneous, uni-religious citizenry; whether it had been the object of imperial exploitation and colonization, or has enjoyed a history of independence; whether it is rich in resources and enjoys a high standard of living, or is poor and overpopulated; whether it is independent or subordinated to the will of a foreign power; or whether its governing elite suffers from delusions of grandeur or sees itself as a servant of the people, will all influence the nature of its politico-legal system. Together, these constitute a set of antecedent or efficient causes. Because all modern politico-legal systems are dominated by a relatively small number of elites, the comparativist must also focus on final causes, such as elite motivations, agendas, and strategies. These are particularly important in states undergoing revolutions, such as the early Soviet Union, where legal reasoning became the logic, rhetoric, and discourse of the class struggle and of revolutionary change. Major parts of the teleology behind the Soviet constitutions included promoting a one-party political system, a
  12. 12. planned economy, and the morality of the Soviet person. In general, the Soviet ruling elite stressed the educational role of law to guide and discipline citizens to be socially responsible, loyal to the Soviet state and committed to the goals and directives of the Communist Party. The teleology of Stalin's 1936 Constitution also included his desire to impress Western democratic opinion, evince the supposed progress of the Russian revolution, and proclaim goals for the future. [FN16] *516 In societies, such as small hunting and gathering bands, without complex political and judicial hierarchies and a specialized legal profession, the constitutional order, legal language, and reasoning may closely reflect the dominant beliefs of the society concerning family, religion, economics, and social organization. By contrast, in hierarchical societies with specialized legal personnel, law, legal reasoning, and discourse become more esoteric, beyond the pale of ordinary parlance and understanding. Legal specialists may further promote the esotericism and oppose attempts at vernacularization to preserve their professional monopoly and thereby maintain the sociocultural gap between themselves and the people. In many states, constitutions and legal codes as actually interpreted and implemented may not reflect the cultural values and traditions of the general
  13. 13. population, but of a small group of governing elites who employ the law as part of their strategy to achieve certain sociopolitical and economic goals. In this volume, for example, Professor Callahan shows how the drafters of India's Constitution intended their document to promote widespread reform and restructure Indian society. Another example of this elite teleological phenomenon is Turkey, the only state with a predominantly Muslim population that has achieved the status of a multi-party, constitutional democracy. Why did this country, rooted in the imperialism of the Ottoman Empire and the jurisprudence of the sharia, become the only constitutional democracy in the Muslim world? In significant part, the answer resides in the teleology of the ruling elite, not in the traditional values of the governed population who opposed the elite's secularization of the legal system. The ruling elite calculated that Turkey's best prospects for economic development and security from Soviet aggression lay in alliances with the democratic West, with its inclusion in the North Atlantic Treaty Organization, the Council of Europe, and the European Community (EC). Turkey became a full member of the first two, and an associate member of the third. In order to achieve these memberships, however, the elites had to
  14. 14. produce a constitutional, multi-party democracy and publicly commit themselves to human rights and the rule of law. [FN17] *517 A satisfactory explanation for this case combines both etiological and teleological analysis. The etiological forces included regional organizations with economic, military, and political power. For instance, in order for Turkey to be considered for full membership in the European Economic Community, EC officials demanded that the Turkish government accede to Europe's Convention for the Protection of Human Rights and Fundamental Freedoms (including Article 25, which recognizes the competence of the Human Rights Commission to receive and investigate complaints from individual citizens) and recognize the competence of the European Court of Human Rights to hear both inter-state or individual citizen complaints brought against Turkey. [FN18] Turkey complied with these prerequisites, and subsequently they have had significant implications for Turkey's domestic substantive and procedural law and police practices. Combined etiological and teleological analysis explains why many post- colonial constitutions were highly derivative of the constitutional institutions and practices of former imperial rulers, many of whom were Western democracies. In each case, the indigenous political elite followed the practical
  15. 15. strategy of copying from the colonial power, thereby appeasing their powerful overlord's desire for continued influence. The elite also convinced the United Nations that their emerging state had the capacity to govern itself in a modern, democratic manner. Hardly any of these new states, however, function politically and legally as Western democracies do. Such borrowings fall under Watson's category of the “transplant bias” -- a label for a situation in which one state adopts the laws of another, not because of the laws' intrinsic merit but because of the source-state' s common language, legal reputation, international prestige, or politico-economic power. [FN19] States rarely, if ever, borrow laws from other states that are less economically developed than themselves. McWhinney properly warns constitution-drafters to avoid: that peculiarly barren and mechanical form of legal eclecticism -- so popular, unfortunately, with constitution-makers today -- of taking odd snippets from constitutional systems here and there and seeking to transplant them, unaltered, to other *518 countries without at least enquiring beforehand whether the particular political, social, and economic conditions under which those constitutional institutions or processes developed in the host country
  16. 16. and which help to make them politically viable and operational there are also present in the receiving country. [FN20] Fortunately, my sometimes abstract musings are followed by three concrete and admirable models of what comparative constitutional law case studies should look like. The articles in this volume by Professors Wise, Nafziger, and Callahan provide excellent examples of the knowledge- generating value of comparative constitutional law research. Each casts intelligent light on different politico-legal issues of national and regional concern. Professor Wise offers an informative analysis of how successive Nicaraguan governments have dealt with the issue of judicial independence within a context of revolution and reform. Professor Nafziger clearly shows how an American tradition of libertarianism, federalism, and other deeply engrained characteristics of United States constitutionalism have shaped a distinctive pattern of cultural heritage law. Finally, Professor Callahan, working with the concept of cultural relativism, explains how the differing historical experiences and social aspirations of Indian and American constitution- drafters affect the dynamics and interpretations of their constitutional texts. [FNa]. Professor of Legal Anthropology, University of Florida; Visiting Professor of Law, University of Florida College of Law, Gainesville.
  17. 17. [FN1]. 1 Konard Zweigert & Hein Kotz , Introduction to Comparative Method 29 (1987). [FN2]. Bernhard Grossfeld, The Strength and Weakness of Comparative Law 112 (1990). [FN3]. Thomas C. Grey, Constitutionalism: An Analytic Framework, in Constitutionalism 189-209 (Roland J. Pennock & John W. Chapman eds., 1979). [FN4]. James A.R. Nafziger, The Underlying Constitutionalism of the Law Governing Archaeological and Other Cultural Heritage, 30 Willamette L. Rev. 596 (1994). [FN5]. Id. at 607. [FN6]. William G. Andrews, Constitutions and Constitutionalism 14 (1968).
  18. 18. [FN7]. Id. at 23. [FN8]. Charles de Montesquieu, The Spirit of the Laws (Anne M. Cohler et al. eds., 1968) (1748). [FN9]. Maureen B. Callahan, Cultural Relativism and the Interpretation of Constitutional Texts, 30 Willamette L. Rev. 610 (1994). [FN10]. Handyside Case, 24 Eur. Ct. H.R. (ser. A), at 48 (1976). [FN11]. Belgium Linguistic Case (No. 2), 6 Eur. Ct. H.R. (ser. A), at 10 (1968). [FN12]. See, e.g., Rene David & John E.C. Brierley, Major Legal Systems in the World Today (3d ed. 1985). [FN13]. Reuben Abel, Man is the Measure 35 (1976). [FN14]. Grossfeld, supra note 2, at 12.
  19. 19. [FN15]. Paul J. Magnarella, Human Materialism: A Model for Sociocultural Systems and a Strategy for Analysis (1993). [FN16]. For a general treatment of Soviet law, see Harold J. Berman, Justice in the U.S.S.R.: An Interpretation of Soviet Law (1963). [FN17]. See generally Paul J. Magnarella, Turkey's Experience with Political Democracy, The Rise and Fall of Democracies in Third World Societies , Studies in Third World Societies, Publication No. 27, 43-60 (V.H. Sultive ed., 1986). [FN18]. Personal interviews with European Human Rights Commission legal staff in Strasbourg, France (July 1993). [FN19]. Alan Watson, The Making of the Civil Law 183 (1981). [FN20]. Edward McWhinney, Constitution-making: Principles, Process, Practice xiii (1981).
  20. 20. 30 WMTLR 509 END OF DOCUMENT

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