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. 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. 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. 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. 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. 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. 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. 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. *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. 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. 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. 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. 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. 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. 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. 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. [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. [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. [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. 30 WMTLR 509
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