Comparative Constitutional Law
Idea
What is the purpose of comparative constitutional law? What is “comparative” and what is “constitutional” about it; and to what extent should the former be relevant to the latter? Comparing constitutions requires us to consider differences (and similarities) in forms of government as well as the political philosophies behind them. This “comparison” will often allow us to illuminate previously unseen elements of individual constitutions from the vantage point of a new – outside – perspective. Yet part from its “hermeneutic” function, comparative constitutional law may also serve a “constructive” function. This constructive function often comes to the fore in times of political crisis or social transformation. While, admittedly, revolutionary changes tend to be relatively rare, constitutional reforms are surprisingly common in today’s world. Indeed, the need for regular constitutional change has dramatically accelerated in the past century during which the forces of globalisation have “integrated” many states into an economically and socially interconnected world.
This process of constitutional symbiosis is not confined to States alone. Today, the very idea of what a “constitution” is has migrated from the “national” to the supranational or international sphere. And while the days of the nation state are surely not yet counted, the state-centred definition of what a “constitution” is – a definition that became prevalent in the eighteenth and nineteenth century – has come to be challenged in the twentieth and twenty-first century by such legal phenomena as the European Union and the United Nations. But can we “really” speak of the European Treaties or the UN Charter as “constitutions”; and to what extent, if any, have they taken ideas from the constitutional traditions of its member states? The European Court of Justice certainly thinks that the EU Treaties have a constitutional nature; and in the context of international law, “constitutionalising” forces have also been identified in the past.
Parts
This course is, again, taught in a variety of formats. One early syllabus – devised with my colleague Roger Masterman – inspired the Cambridge Companion to Comparative Constitutional Law. Pedagogically, it arranged its chapters into five thematic parts. Beginning with an exploration of the “theoretical foundations” (Part I) and having revisited some important ‘historical experiences” (Part II), the core “constitutional principles” (Part III) and “state institutions” (Part IV) are analysed before it finally investigates forms of “transnational” constitutionalism (Part V) that have emerged in our “global” times. A companion website to the textbook can be found here. In recent years, I have been co-teaching a more advanced version of this syllabus with the brilliant Cristina Fasone.
Where
Durham Law School – Palatine Centre
Stockton Road, DH 1 3LE
Durham – United Kingdom
