Comparative Constitutional Law — Exam Notes

COMPARATIVE CONSTITUTIONAL LAW

Examination Notes
Prepared from: D. Grimm, "The Achievement of Constitutionalism..."; M. Loughlin, "What is Constitutionalisation?"; G. J.
Jacobsohn, "Constitutional Values and Principles"; M. Rosenfeld & A. Sajó, "Introduction" (Oxford Handbook of Comparative
Constitutional Law); UK "Introduction: The Scope of Constitutional Law"
Mapped to Course Syllabus — Unit 1 (Introduction), with connected extracts for Unit 3 (Rights) & Unit 4 (Judicial Review)

How to use these notes

Navy blue headings = topic structure (follows the syllabus).
Light pink boxes/tables = definitions, case law, jurists and quick-revision points — read these first if short on time.
Bold navy words inside bullet points = key terms to remember for definitions/short answers.

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 Comparative Constitutional Law — Exam Notes

UNIT 1 — INTRODUCTION: SIGNIFICANCE OF CONSTITUTION,

CONSTITUTIONALISM & COMPARATIVE CONSTITUTIONAL LAW

A. What is a "Constitution"?
A constitution, in lay terms, is the set of rules that establishes and governs an organisation — in the case of a
state, it defines the powers, rights and duties of governmental institutions and their relationship with citizens.
Every constitution performs two functions:

• Descriptive/defining function — it describes how government actually operates.

• Normative/evaluative function — it prescribes how government ought to act, and provides a standard
against which conduct can be judged "constitutional" or "unconstitutional".

Key Definitions (Jurists)

Prof. K. C. Wheare: A constitution is "the whole system of government of a country, the collection of rules which
establish and regulate or govern the government." (Modern Constitutions, 1966)
Thomas Paine (Rights of Man, 1792): "A constitution is not the act of a government, but of a people constituting a
government... A constitution is a thing antecedent to a government; and a government is only the creature of a
constitution." — i.e. the constitution gives legitimacy to government and precedes it.
Sir Ivor Jennings (The Law and the Constitution): Even where there is no single written document (as in the UK), the
rules determining the creation and operation of governmental institutions still exist — "the British constitution"
describes those rules.

Note: Constitutional law is more than legal rules

Especially in the UK, constitutional law cannot be understood through legal rules (statute + judicial precedent)
alone. It is supplemented by binding, non-legal conventional rules and practices (e.g., the convention that the
Crown always grants royal assent, or that the PM is appointed from the majority party). A power may be legally
valid yet still be considered "unconstitutional" if it violates convention — showing that constitutionalism is
broader than mere legality.

B. Classifying Constitutions (Wheare's six classifications)

Professor K. C. Wheare classifies constitutions along six axes. These are commonly tested with country
examples:

1. Written and Unwritten

• Written constitution: contained in a single document/series of documents (e.g., USA 1787, France 1789
origin). Written constitutions arise from a clear historical break with the past — a conscious "fresh start"
(Wheare).

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• Unwritten constitution: e.g., UK, Israel, New Zealand — no single codified document; constitution evolves
through statute, case law and convention. The UK's unbroken constitutional history since 1066 (barring
17th-century upheavals) explains its unwritten character.

2. Rigid and Flexible

• Rigid: amendment requires special/entrenched procedure. Example: Australia (Commonwealth of Australia
Constitution Act 1900, s.128) — needs special parliamentary majority + referendum approved in 4 of 6
states; only 8 of 42 proposed amendments succeeded between 1900–1990 ("Australia is a frozen
continent" — Sawer). Example: USA — 2/3 majority of Congress + ratification by 3/4 of state legislatures;
very few amendments passed historically.
• Flexible: UK constitution — under Parliamentary Sovereignty, Parliament can change any law (including
constitutional rules) by ordinary simple-majority legislation; no court can invalidate an Act of Parliament
(Edinburgh & Dalkeith Railway v Wauchope (1842); Sillars v Smith (1982)).
Illustration (Jennings): If Parliament enacted a law banning smoking in the streets of Paris, it would be legally
valid in the UK (courts must apply it) though practically unenforceable abroad. Sir Leslie Stephen similarly asked
whether Parliament could validly order all blue-eyed babies killed — legally yes, but politically restrained by
accountability to the electorate.

3. Supreme and Subordinate

• Supreme constitution: legislative powers of the governing body are legally unlimited (e.g., UK Parliament).
• Subordinate constitution: powers are limited by a higher authority (e.g., a colonial legislature limited by
the imperial parliament).

4. Federal and Unitary

• Federal: power divided between central government and states/provinces by the constitution itself, each
with exclusive/shared spheres, and a Supreme Court to police the boundary — e.g., USA, Canada,
Australia, Malaysia.
• Unitary: single sovereign legislature; regional bodies (e.g., devolved Scottish Parliament, Welsh Assembly,
Northern Ireland Assembly under the Scotland Act 1998, Government of Wales Act 1998, Northern Ireland
Act 1998) exercise only devolved power that Westminster can, in theory, withdraw.

5. Separated and Fused Powers

Traceable to Aristotle, and developed by Locke, Bolingbroke and Montesquieu. Requires that legislative,
executive and judicial power not be concentrated in one body, to prevent tyranny. The UK exhibits a
partial/fused separation (e.g., historically the Lord Chancellor straddled all three branches; the executive sits
within and is drawn from the legislature) — unlike the sharper separation under, e.g., the US Constitution.

6. Republican and Monarchical

• Republican: elected head of state (President) — e.g., USA. The President proposes legislation but Congress
decides; a Presidential veto can be overridden by a 2/3 Congressional majority.

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 Comparative Constitutional Law — Exam Notes

• Monarchical: hereditary head of state with largely symbolic/reserve powers exercised on ministerial advice
by convention — e.g., UK. The Crown legally may withhold royal assent, but by convention has not done so
since 1708.

Quick summary — Characteristics of the UK Constitution

(a) largely unwritten; (b) flexible; (c) supreme; (d) unitary (with devolution since 1998); (e) partially separated
powers; (f) monarchical.

C. The Concept of Constitutionalism

Constitutionalism is the doctrine governing the legitimacy of government action. It means conformity of
government action with the broad philosophical/political values of a state — going beyond mere "legality" (i.e.,
action taken under legal authority may still be "unconstitutional" if it offends constitutionalism).

Constitutionalism requires, at minimum:

• (a) Power exercised within legal limits conferred by Parliament (intra vires) and accountability to law;
• (b) Respect for the individual and individual rights, irrespective of legal authority;
• (c) Sufficient dispersal of power between institutions (separation of powers) to avoid abuse;
• (d) Government and legislature accountable to the electorate.
In short: limitation of power + separation of powers + responsible, accountable government.

D. Dieter Grimm — "The Achievement of Constitutionalism and its Prospects in a Changed

World"
This is the most important reading for defining constitutionalism and tracing its historical emergence and
modern crisis ("the twilight of constitutionalism").

1. Historical Emergence
• Constitutionalism is a recent innovation — it emerged in the last quarter of the 18th century out of two
successful revolutions against hereditary rulers: first in the British colonies of North America, then in
France.
• Medieval order: fundamental laws (leges fundamentales) were regarded as of divine origin — politics
merely enforced/concretised eternal law. Power was dispersed among many bearers (e.g., landowners)
tied to status, not territory.
• Post-Reformation absolutism: the devastating religious civil wars (16th–17th c.) required concentration of
power in a single ruler (the prince) to restore peace — birth of the modern State and the concept of
sovereignty (Jean Bodin, Les Six Livres de la République, 1576) — the ruler's right to dictate law for
everybody without being bound by law himself. "The State originated as an absolute state."
• Social contract theory: natural law philosophers (Hobbes, Locke, etc.) imagined a fictitious "state of
nature" of equal freedom, from which people would consent to government for security. Initially (16th–

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17th c.) this justified absolutism (surrender all rights for security); later (from mid-18th c.), as absolute
rulers succeeded in pacifying society, natural-law theorists demanded fundamental rights and separation
of powers/checks and balances to protect individual freedom against the state. Emer de Vattel was the
sole theorist who required an actual document/popular decision for the social contract — otherwise it
remained a fictitious 'regulative idea', not enacted law.
• The revolutionary breakthrough: the American and French revolutionaries turned philosophy into positive
law — creating a binding constitution rather than relying on the mere "power of persuasion." This solved
the puzzle of how a law emanating from political processes could also bind those processes, via a hierarchy
of norms: constitutional law (from/attributed to the people, binding government) is prior to and supreme
over ordinary law (from government, binding the people).
Key jurist references: Americans called this "paramount law" (master/servant, principal/agent); Abbé Sieyès
conceptualised it as pouvoir constituant (constituent power of the people) vs pouvoir constitué (constituted, i.e.
government power) — Qu'est-ce que le Tiers État? (1789).

2. Grimm's Five Defining Characteristics of the Modern Constitution

Memorise — Grimm's 5 criteria of constitutionalism

1. The constitution is a set of legal norms (not a mere philosophical construct), emanating from a political decision,
not a pre-established truth.
2. Its purpose is to regulate the establishment and exercise of public power (not merely to modify a pre-existing
right to rule).
3. The regulation is comprehensive — no extra-constitutional bearers or means of exercising public power are
recognised.
4. Constitutional law finds its origin with the people as the sole legitimate source of power (pouvoir constituant /
pouvoir constitué distinction).
5. Constitutional law is higher law — it enjoys primacy over all other laws; incompatible acts have no legal force.

Grimm stresses that these are functional, not substantive, criteria — constitutionalism is compatible with
monarchical or republican, federal or unitary, presidential or parliamentary forms. But it necessarily requires
BOTH the democratic element (popular sovereignty) AND the rule-of-law element (limited government); a
system satisfying only one is "deficient" and does not achieve full constitutionalism.

3. Why Constitutionalism is an "Achievement"

• It rules out absolute/arbitrary power of men over men.
• It makes public power predictable, letting citizens anticipate government behaviour and face public agents
without fear.
• It provides a consensual basis for resolving disputes civilly and enables peaceful transitions of power.
• Under favourable conditions, it can integrate society (cf. D. Grimm, "Integration by Constitution" (2005)).

4. Two Further Preconditions for a Constitution to Emerge

• (i) An object capable of being constitutionalised: this is the modern territorial State — power concentrated
over a defined territory. Ancient Rome, medieval kingdoms, and (on this narrow view) the traditional
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"British constitution" are not constitutions in this strict sense because no modern unified State-power
existed to regulate.
• (ii) Two constitutive boundaries must exist and hold: (a) the boundary between public and private — the
State must have a monopoly of public power while private actors remain free of it (private actors
exercising public power without accountability breaks the constitutional scheme); and (b) the boundary
between internal and external — the State's public power must be free from external/foreign competitors
within its territory (no constitution submits domestic power to a foreign power).

5. The Crisis: Internal Erosion of Statehood

Grimm's central thesis: while constitutionalism has achieved universal external recognition (almost all ~200
states now have a constitution, with growing constitutional courts), it is simultaneously undergoing internal
erosion because both constitutive boundaries are now blurred:

• Erosion of the public/private boundary: The expansion of the welfare/regulatory state means government
increasingly relies on negotiated agreements with private actors instead of unilateral legal orders —
private actors gain a share of public power without being brought within constitutional accountability.
• Erosion of the internal/external boundary: States have transferred sovereign rights to international
organisations (UN, WTO, IMF, ILO) and — most intensively — European bodies (Council of Europe /
European Court of Human Rights, and the EU), whose acts bind states but escape the control of national
constitutions.

Body / Institution Grimm's Assessment of its Constitutional Character

Coordinates states and enforces peace (even by military intervention); jus cogens
developed under UN umbrella. But UN Charter is NOT a world constitution — it lacks
United Nations (1945)
a democratic element and comprehensive/concentrated power comparable to a
State.

Exercises public power solely through judicial acts; binding on 46 member states but
European Court of Human does not have direct effect — cannot itself reverse domestic judgments (only finds a
Rights (ECtHR) violation and leaves redress to the state). Still, its effects on national legal systems
(even amending national constitutions) are far-reaching.

Broadest and deepest transfer of sovereignty: legislative, administrative and judicial

acts; direct effect + primacy over domestic law (incl. national constitutions) even
European Union (EU) though not stated expressly in the Treaties. States remain 'masters of the treaties' —
the EU is not itself a state, but the Treaties function like a constitution in an
operational (not democratic) sense.

Single-issue organisations with limited, non-democratic structures — legalisation, but

WTO / IMF / ILO
not constitutionalisation in the full sense.

6. Consequences for the Five Criteria (national level)

• (1) Constitution remains a set of legal norms owing validity to political decision.
• (2) Its object continues to be public power, but only insofar as it remains State power (no longer ALL public
power).

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• (3) Because public power and State power are no longer congruent, the constitution can no longer
regulate public power coherently and comprehensively.
• (4) Primacy of constitutional law is no longer exclusive — it does not prevail over
international/supranational law within its own field.
• (5) The constitution still emanates from the people, but can no longer guarantee that ALL public power
effective within the State is democratically legitimised by the people.
Grimm's conclusion: the constitution "shrinks to a partial order" — a complete picture of legal conditions for
rule now requires reading national constitutional law together with international law.

7. Can Constitutionalism be 'Elevated' to the International Level? — "Constitutionalisation"

Grimm examines (and largely rejects) attempts to relocate the achievement of constitutionalism to the
international plane:

• The EU: closest candidate — comparable in range of competencies, organisational density and intensity of
effect to the central unit of a federal state, and its Treaties function like a constitution. BUT the Treaties
lack a democratic origin: citizens did not adopt them directly (even referenda are national acts approving a
treaty, not a European constituent act), so the Treaties are legitimate but not democratically legitimate in
the full constitutional sense. A treaty becomes a 'constitution' only if it transfers full authority (including
the amendment power) to the new entity itself — this has not happened with the EU (the failed 2004
Constitutional Treaty would not have changed this either).
• The UN/global level: No organisation approaches the EU's density of power. The international order
resembles the pre-State medieval order — 'islands' of dispersed, sometimes conflicting single-issue power
(economic vs humanitarian interests) rather than a coherent, comprehensive system.
• 'Societal constitutionalism' (Gunther Teubner and others): the idea that private global actors' self-created
transnational rules could function as constitutions. Grimm is critical: this at best amounts to self-limitation
guided by the actor's own interest, not a genuinely democratic common interest, and lacks any global
legislator or representative/participatory element.
Grimm's final conclusion: constitutionalism cannot be reconstructed at the international/transnational level,
primarily because that level lacks the democratic element. He recommends dropping the loose use of
'constitution'/'constitutionalisation' for international bodies (it is 'thin' constitutionalism, i.e. legalisation dressed
up as constitutionalism) and instead strengthening states as the primary continuing source of democratic
legitimation, while allowing international law to develop on its own (different) terms.

E. Martin Loughlin — "What is Constitutionalisation?"

Loughlin approaches the same problem (constitutionalisation) via the concepts of Constitution and
Constitutionalism, tracing an American case study (Madison v Hamilton) that Grimm does not cover in detail —
very likely to be examined together with Grimm.

1. Constitutions: Ancient vs Modern

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Concept Meaning
The state is like a living organism; the constitution is the political "way of being" of a
nation — evolved, not made, like a language. Burke: the state is not "a partnership
Ancient/organic constitution agreement in a trade of pepper and coffee" but "a partnership... between those who
(Edmund Burke) are living, those who are dead, and those who are to be born." It cannot be reduced
to a written text (cf. Joseph de Maistre: a constitution's true content can never be
exhausted by written laws).

A conscious, man-made document, created by 'the people' as an exercise of

Modern constitution (Thomas
constituent power, and which precedes and constitutes the government (the
Paine)
'constituted power').

2. Paine's Four Key Elements of a Modern Constitution

• (i) Real, not merely notional — it must be producible "in a visible form"; if it cannot, "there is none."
• (ii) Antecedent to government — "not the act of a government, but of the people constituting a
government" (constituent power precedes and creates constituted power).
• (iii) Comprehensive — contains the whole body of principles for how government is organised and
empowered.
• (iv) Fundamental/higher law — the constitution stands to ordinary government-made law as law stands to
a court: the government cannot alter the constitution that binds it (only the people's constituent power
can).
Grimm identifies essentially the same five features (see D above) — examiners may ask you to compare
Paine/Loughlin's four elements with Grimm's five characteristics.

3. Civil Society and Government (Paine vs Hegel)

• Paine (building on Adam Smith's natural jurisprudence): the natural laws of trade/commerce create 'civil
society' as the true expression of the public interest; government should be minimal, since as civilisation
progresses, civil society increasingly regulates itself — government 'makes but a small part of civilized life.'
• Hegel's rebuttal (Philosophy of Right, 1821): civil society's market laws reflect and reinforce natural
inequality rather than curing it; civil society (a sphere of particularistic competition) actually needs MORE
government regulation, not less. Consequence: if a modern constitution exists mainly to protect subjective
(private) rights in civil society, it may become a barrier to achieving objective (collective) freedom.

4. Constitutionalism: Republican vs Liberal (Madison vs Hamilton) — U.S. Federalist Papers, 1788

Both James Madison and Alexander Hamilton agreed the Constitution must be protected from majoritarian
excess ("government of the people... but demonstrably not government by the people") — Madison: "you must
first enable the government to control the governed; and in the next place oblige it to control itself." But they
diverged on the mechanism:

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Model Core Features

Relies on the institutional structure itself — checks and balances / separation of
powers — as the primary control ('ambition must be made to counteract ambition').
No department can claim an exclusive/superior right to fix constitutional meaning;
Republican / Political
constitutional meaning remains open to ongoing political contestation. Madison gave
Constitutionalism (Madison)
no special role to courts and was initially sceptical of even including a Bill of Rights,
believing rights are better protected structurally. Quote (John Adams): 'Power must
be opposed to power, force to force...'

Relies on a strong central government and, crucially, on the judiciary as final

Liberal / Legal interpreter/enforcer of the Constitution. Federalist No. 78: the judiciary is 'the least
Constitutionalism (Hamilton) dangerous' branch (no sword, no purse — only judgment) and should have power 'to
declare all acts contrary to the manifest tenor of the Constitution void.'

Landmark Case: Marbury v Madison, 5 US (1 Cr) 137 (1803)

Chief Justice John Marshall, drawing heavily on Hamilton's Federalist No. 78, established the U.S. Supreme Court's
power of judicial review — even though judicial review of legislation is not explicitly provided for in the U.S.
Constitution's text.
Loughlin's thesis: American constitutional history is essentially the story of the triumph of Hamiltonian liberal-legal
constitutionalism over Madisonian republican-political constitutionalism — the Constitution became positivised,
individualised and legalised, so that (as Bobbitt/Kammen note) 'the Constitution is what the judges say it is.'
Related case: McCulloch v Maryland, 17 US (4 Wheat.) 316 (1819) — illustrates the Hamilton/Madison policy clash
over federal power (national bank).

5. From Constitutionalism to Constitutionalisation

• Constitutionalisation = the process by which liberal-legal constitutionalism is repackaged as a free-
standing, universal set of rational norms, and extended to ALL exercises of public power — domestic and
international — regardless of whether a 'people' actually authorised those norms.
• Domestic constitutionalisation: the 'rights revolution' — activist judiciaries making formal constitutional
guarantees a lived reality, extending judicial review to electoral processes, national-security policy,
macroeconomic planning, even 'horizontal effect' of rights charters between private parties.
• Supranational constitutionalisation — two forms: (a) constitutionalising existing treaty bodies themselves
(WTO, UN Charter as 'constitution of the international community' — B. Fassbender); (b) 'multi-level
constitutionalism' — reconstructing constitutionalism at the global level as compensation for the decline
of the State's constitution (A. Peters, 'Compensatory Constitutionalism' (2006); E. de Wet; T. Cottier & M.
Hertig, '21st Century Constitutionalism').

Author / Body Position on Supranational Constitutionalism

Argues the WTO promotes human-rights-consistent 'constitutional' functions via
E.-U. Petersman
market freedoms.

Warns constitutionalising the WTO privileges investors/corporations and worsens

S. Picciotto (critic)
economic inequality.

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Author / Body Position on Supranational Constitutionalism

B. Fassbender Argues the UN Charter functions as the 'constitution' of the international community.

Advocate 'multi-level' or 'compensatory' constitutionalism — national, regional and

A. Peters / E. de Wet / Cottier
functional regimes together form a 'Verfassungskonglomerat' (constitutional
& Hertig
conglomerate).

Multi-level constitutionalism is 'pervasive normativism' — it treats legal principles as

Loughlin's critique self-evidently rational, largely without addressing where DEMOCRATIC legitimacy (the
constituent power of a 'people') is to come from. Echoes Grimm's core objection.

Van Gend en Loos (1963) and Les Verts v Parliament (1986): the ECJ itself has
described the EU treaties as the Community's 'basic constitutional charter' — an
European Court of Justice (ECJ)
example of 'constitutionalisation through integration' driven by the Court, not by a
democratic constituent act.

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F. Michel Rosenfeld & András Sajó — Introduction (Oxford Handbook of Comparative

Constitutional Law)
Directly answers the syllabus theme "Significance of Comparative Constitutional Law."

1. Brief History
• Ancient roots: Aristotle compiled and compared 158 Greek city-state constitutions as the empirical basis
for his Politics.
• Enlightenment revival: Montesquieu's The Spirit of the Laws (1748) used historical comparison to generate
the normative foundations of modern constitutionalism (e.g., separation of powers, partly based on a
mistaken reading of the British system — much as Dicey later misunderstood the French system).
• Post-revolutionary period: the Federalist Papers cited foreign experience to justify the new U.S.
Constitution; the French translation of U.S. state constitutions influenced French revolutionary thought.
• 19th century: rise of legal positivism made comparative/foreign material largely irrelevant to national legal
science (the age of 'exegetes').
• Interwar period: Boris Mirkine-Guetzevitch is credited with founding comparative constitutional law as a
distinct discipline, hoping international law could reinforce fragile new democratic constitutions.
• Post-WWII: Carl J. Friedrich shifted constitutional theory from pure political science toward a 'value-
oriented' comparative approach — spurred by the intellectual failure of legal positivism to resist
totalitarianism, and by the Cold War desire to showcase liberal constitutionalism (rights protections from
the U.S. Supreme Court from the 1940s) against communism.
• Modern take-off: According to Mark Tushnet, comparative constitutional law only became a full-fledged
discipline after the transition to democracy beginning in 1989 (fall of the Berlin Wall) — mass constitution-
drafting in Eastern/Central Europe, South Africa, Latin America created both practical demand and a
critical mass of expertise.

2. Uses of Comparative Constitutional Law

Four principal uses (Rosenfeld & Sajó)

1. Constitution-making (drafting/amending a constitution using foreign models).
2. Constitutional interpretation (courts using foreign law to interpret their own constitution).
3. Descriptive scholarship (observers classify/analyse how comparison is actually used).
4. Normative/prescriptive scholarship (observers assess whether/how comparison should be used).

Examples: the Canadian Charter of Rights and Freedoms influenced constitution-making in South Africa, New
Zealand and Hong Kong, and the Basic Law in Israel. The South African Constitution explicitly empowers/requires
courts to consider foreign law when interpreting the Bill of Rights.

Landmark Case: J. Nold KG v EC Commission (Case 4/73) [1974] ECR 491

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The European Court of Justice (ECJ), facing an absence of fundamental-rights provisions in the founding EU
treaties, held that it 'cannot... allow measures which are incompatible with fundamental rights recognised and
guaranteed by the constitutions of' the member states.
Significance: this single decision simultaneously performed constitution-making (creating EU fundamental rights
protection where none existed) AND constitutional interpretation drawing on comparative national constitutional
traditions.

3. Purposes of Comparative Constitutional Analysis

• Universalist purpose: identify what is common/universal across constitutional systems (e.g.,
proportionality is argued by some to be a near-universal method for judging limits on rights).
• Particularist purpose: Montesquieu's caution — "the political and civil laws of each nation... should be so
appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can
suit another." On this view, comparison should mainly explain why systems differ, not converge them.
• Middle positions: problems may be universal even where solutions differ (comparison helps illuminate
one's own system by contrast); or comparison serves a critical/reflexive function — critical theorists (e.g.,
Günther Frankenberg) argue comparative law can have a 'colonizing' effect, projecting a dominant
culture's (e.g., US or German) constitutional gloss onto other systems.

4. Challenges
• Richard Posner: language and unfamiliarity with foreign social/institutional context make genuine
comparative competence hard to achieve.
Pierre Legrand: warns that rules and concepts alone give only a "thin description" of a legal system; true
comparison requires "thick description" of underlying legal culture/mentalité, since habits and traditions shape
how identical rules are actually interpreted. Comparison always involves translation — risking "getting lost in
translation."

• Strategic/selective citation: e.g., Justice Antonin Scalia's dissent in Lawrence v Texas, 539 US 558 (2003)
(majority struck down criminalisation of homosexual sex partly citing European jurisprudence) — Scalia
argued the majority's citation was selectively chosen, ignoring jurisdictions in Asia/South America that
criminalised the same conduct.

5. Constitutional Borrowing and Transplantation

• Justice Scalia (on U.S. federalism cases): "comparative analysis [is] inappropriate to the task of interpreting
a constitution though it [is], of course, quite relevant to the task of writing one."

Term (Andrzej Rapaczynski) Meaning + Example

A foreign model is knowingly adopted/adapted — e.g., American-style federalism
Positive influence influencing Australia; U.S. First Amendment doctrine influencing Israeli free-speech
jurisprudence.

A foreign model is knowingly considered and REJECTED — e.g., India's deliberate

Negative influence
decision NOT to include a U.S.-style 'due process' clause, informed by the U.S. Lochner

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Term (Andrzej Rapaczynski) Meaning + Example

v New York, 198 US 45 (1905) experience (using due process to strike down
social/economic legislation, later repudiated by the U.S. itself in the 1930s: Nebbia v
New York (1934); West Coast Hotel Co v Parrish (1937)).

• Transplants can grow, evolve, or atrophy: e.g., near-verbatim importation of U.S. separation of
powers/federalism into several Latin American constitutions has in practice sometimes atrophied into
presidential dictatorship rather than genuine checks and balances.
• Caution against uncritical borrowing — Indian judicial warning: "The craze for American precedents can
soon become a snare... We are interpreting and expounding our own Constitution" (Mahadeb Jiew v Dr
Sen, AIR 1951 Cal 563).

6. Methodology (brief)
Central methodological debate: are there genuinely comparable universals across constitutional systems, or is
each constitution sui generis and context-bound? Ruti Teitel argues comparative functionalists over-emphasise
identity/similarity while critical legal scholars over-emphasise difference, and that a proper balance emerges
through judicial-scholarly dialogue. Debates parallel the domestic U.S. controversy between originalism
(interpret per framers' intent) and non-originalism (interpret per evolving generational needs) — Cass R.
Sunstein, Stephen Breyer (Active Liberty, 2005).

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UNIT 3 (RELEVANT EXTRACT) — CONSTITUTIONAL VALUES AND PRINCIPLES:

EVOLUTION & PROTECTION OF RIGHTS
Gary Jeffrey Jacobsohn, "Constitutional Values and Principles" (Oxford Handbook of Comparative Constitutional
Law) — links directly to the syllabus theme of the evolution of rights and their comparative/foreign-law
dimension.

A. The Central Distinction: Values vs Principles

Core distinction (Jacobsohn)

PRINCIPLES tend to be UNIVERSAL — less culture-bound, associated with aspirations that transcend national
borders (e.g., 'democracy', 'universally recognized principles... of international law').
VALUES tend to be PARTICULAR/LOCAL — associated with a nation's own history, traditions and culture (e.g.,
'Turkish historical and moral values'; 'positive values based on cultural traditions' — Rwanda).
Zagrebelsky (critical of 'jurisprudence of values'): 'he who parades values is often a cheat... values cannot be
traceable to reasons subject to rational controls.'

Constitutional text examples cited: Costa Rica ('history and values of the country'); Egypt ('character of the
Egyptian family... values and traditions it embodies'); Argentina ('fostering of democratic values' — a more
universal value-claim); Brazil ('equality and justice as supreme values'); Algeria/Croatia/Iraq/Lithuania (invoking
universal 'principles of democracy'/'principles... of international law').

B. Principles: Universal Aspirations and Practical Accommodations

1. Dworkin's Critique of Legal Positivism

Ronald Dworkin (Taking Rights Seriously, 1977), responding to H.L.A. Hart's legal positivism, argued law includes
not only rules but PRINCIPLES — standards observed 'because it is a requirement of justice or fairness or some
other dimension of morality', not because they secure some desirable social/economic/political goal. Principles
carry WEIGHT (unlike rules, which simply apply or don't) and are especially linked to individual RIGHTS (as
opposed to POLICIES, which pursue collective goals).

• Aharon Barak (former President, Israel Supreme Court): 'The interpretation of legal texts is dictated by
fundamental principles, since they constitute the objective purpose of every legal text.'
• Counter-view (Larry Alexander & Ken Kress): 'the invocation of legal principles is misguided.'
• Lawrence Tribe (The Invisible Constitution, 2008): constitutional principles 'go beyond anything that could
reasonably be said to follow simply from what the Constitution expressly says' — e.g., the U.S. 'anti-
secession principle' is nowhere in the constitutional text.
• Richard Posner's critique of Dworkin: in practice a 'principle' is often just 'a policy with which we are in
agreement.'

2. The 'Level of Generality' Problem

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 Comparative Constitutional Law — Exam Notes

Mark Tushnet: 'different interpreters will specify the principles underlying particular constitutional terms
differently, some at an abstract level of generality, some at a more concrete level' — and 'all such choices are
inherently non-neutral.' This is a favourite exam theme: judges can manipulate outcomes simply by choosing
how broadly/narrowly to define a principle.

Illustration — Israel (Justice Aharon Barak)

Israel's Proclamation of Independence commits to BOTH a Jewish State and a universalist liberal democracy — an
internal tension.
The Basic Law: Human Dignity and Liberty (1992) requires upholding 'the values of the State of Israel as a Jewish
and democratic State.'
Barak resolved this by interpreting 'Jewish State' at a very HIGH level of abstraction ('until it becomes identical to
the democratic nature of the state') — controversial, since critics say this favours one side of Israel's divided
legacy.

3. German 'Practical Concordance' (praktische Konkordanz)

Landmark Case: The Southwest Case, 1 BVerfGE 14 (1951) — German Federal Constitutional Court
'Every constitutional principle must always be interpreted in such a way as to render it compatible with the
fundamental principles of the Constitution as a whole' — the principle of practical concordance requires
harmonising all constitutional principles so that none is enforced at the expense of others.
The Court also affirmed (obiter) that even a duly-enacted constitutional provision COULD in theory be null and void
if it contravened even more fundamental principles that 'precede even the constitution' — foreshadowing the
doctrine that some amendments can be unconstitutional.
Donald Kommers: this flows from treating the Basic Law (Grundgesetz) as a 'structural unity' reflecting an
'objective order of values' (eine objektive Wertordnung) — cf. Luth Case, 7 BVerfGE 198 (1958).

4. Unconstitutional Constitutional Amendments — India

Landmark Case: Kesavananda Bharati v State of Kerala, 1973 SC 1461

The Indian Supreme Court, drawing on German reasoning, held that Parliament CANNOT use its amending power
to destroy the 'BASIC STRUCTURE' of the Constitution.
A justice: 'Our Constitution is based on a social philosophy and every social philosophy like every religion has two
main features, namely, basic and circumstantial. The former remains but the latter is subject to change.'
Problem left unresolved: no clear test distinguishes 'basic' (unamendable) features from merely 'circumstantial'
ones.

Follow-up: Minerva Mills Ltd v Union of India, AIR SC 1789 (1980)

Applied the basic structure doctrine to strike down Indira Gandhi-era constitutional amendments that sought to
give Parliament unlimited amending power (entrenching authoritarian rule) — a justice: 'the Constitution is a
precious heritage; therefore you cannot destroy its identity.'
Secularism has separately been recognised as part of India's 'basic structure' — see Prabhoo v Kunte (1996) and S.
R. Bommai v Union of India, 3 SC 1 (1994).

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 Comparative Constitutional Law — Exam Notes

C. Values: Finding Constitutional Meaning in 'Local Habits'

1. Edmund Burke's Prescriptive Constitution

Burke saw constitutions as embodiments of unique history and cultural tradition, evolving to fit 'the
circumstances and habits of a people.' BUT Burke's deference to tradition was NOT unlimited: he rejected
Warren Hastings' defence of 'geographical morality' in India (the claim that local custom alone could excuse
otherwise wrongful colonial conduct) — insisting governance must respect universal standards of right conduct
even while adapting to local circumstance. Burke: government is founded 'in political convenience and in human
nature; either as that nature is universal, or as it is modified by local habits.'

2. Turkey — Secularism vs 'Historical and Moral Values'

Turkey — headscarf case (Constitutional Court, 2008)

Turkey's Constitution invokes 'Turkish historical and moral values' (Art. 2 protects secularism as an unamendable
'basic principle of the Republic').
In 2008 the legislature amended the Constitution to allow headscarves in universities; the Constitutional Court
struck the amendments down for violating secularism.
Illustrates the tension Jacobsohn's chapter is built around: locally-rooted VALUES (religious tradition) pulling
against a universalist/state-specific PRINCIPLE (secularism) entrenched against amendment.

3. Selective Incorporation and 'Due Process Traditionalism' — USA

• Justice Benjamin Cardozo (The Nature of the Judicial Process, 1921): 'A constitution states or ought to
state not rules for the passing hour, but principles for an expanding future.'

Landmark Case: Palko v Connecticut, 301 US 319 (1937)

Cardozo held that only liberties 'of the very essence of a scheme of ordered liberty' are protected against the states
via the 14th Amendment Due Process Clause.
Example given: trial by jury has 'value and importance' but is NOT so 'rooted in the traditions of our people as to be
ranked as fundamental.'

Landmark Case: Griswold v Connecticut, 381 US 479 (1965)

Justice John Marshall Harlan II called for 'continual insistence upon respect for the teachings of history [and] solid
recognition of the basic values that underlie our society.'
Recognised a constitutional right to marital privacy (contraception) — a key case in the development of
unenumerated rights via 'due process traditionalism.'

Critique (Christopher Eisgruber): 'What should it matter whether a claimed constitutional right has solid
foundations in traditions? Traditional practices may, after all, be exquisitely unjust.' Also cf. Justice Felix
Frankfurter: 'Local customs, however hardened by time, are not decreed in heaven.'

• William Graham Sumner (Folkways, 1907) — sociological grounding: 'the standards of good and right are in
the mores... For the men of the time there are no "bad" mores. What is traditional and current is the
standard of what ought to be.'

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D. Foreign Law in Constitutional Interpretation — Values vs Principles Reprised

Jacobsohn's conclusion links back to Part A/F above: universalist PRINCIPLES (e.g., 'principles of democracy')
benefit from comparative/foreign-law analysis, because their validity is not tied to one nation's culture — courts
can check whether the same norm holds up elsewhere. Locally-rooted VALUES (e.g., 'folk traditions') gain little
from foreign comparison, since they are, by definition, particular to one polity.

• Indian judicial caution against overuse of American precedent: 'The craze for American precedents can
soon become a snare... a perverted Constitution operating in this land under the delusive garb of the
Indian Constitution.'
• Justice Scalia (critiqued by Sanford Levinson): 'Scalia the judge roots himself in an America whose values he
purports to be able to identify. If the job of the judge is to identify and then apply these distinctive values,
why would it be relevant to study how other cultures approach similar questions?'

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 Comparative Constitutional Law — Exam Notes

UNIT 4 (RELEVANT EXTRACT) — JUDICIAL REVIEW: ORIGINS AND THE MADISON–

HAMILTON DEBATE
(Cross-refer to Section E.4 above — Loughlin's account of republican vs liberal constitutionalism is the key
comparative-law grounding for the concept of judicial review before it is studied in specific national systems
such as the U.S., U.K., France and India.)

Summary for quick revision

Aspect Detail
Not explicit in the constitutional text; established by Chief Justice John Marshall in
Origin of U.S. judicial review Marbury v Madison (1803), building on Hamilton's Federalist No. 78 argument that
courts should void acts 'contrary to the manifest tenor of the Constitution.'

Judicial review was NOT Madison's preferred safeguard — he trusted institutional

Madison's alternative vision checks and balances (separation of powers) more than judges, and was originally
sceptical of even a Bill of Rights.

U.S. constitutional history = the gradual TRIUMPH of Hamiltonian judicial supremacy

Consequence (Loughlin) over Madisonian political/structural constitutionalism — 'the Constitution is what the
judges say it is' (Bobbitt).

The Federal Constitutional Court's practical concordance doctrine (Southwest Case,

Comparative echo — Germany 1951) shows judicial review being used to harmonise, not merely police,
constitutional principles.

Kesavananda Bharati (1973) and Minerva Mills (1980) show the judiciary asserting a
Comparative echo — India power even MORE far-reaching than Marbury — the power to strike down
constitutional AMENDMENTS themselves via the basic structure doctrine.

The ECJ, without express textual authorisation, asserted for itself powers functionally
akin to constitutional review through Van Gend en Loos (1963), Les Verts (1986) and
Comparative echo — EU
Nold (1974) — 'constitutionalisation through integration' driven by judicial
interpretation rather than a democratic constituent act.

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 Comparative Constitutional Law — Exam Notes

QUICK-REVISION APPENDIX

1. Master Case-Law Table

Case Principle / Holding
Marbury v Madison, 5 US 137 Established judicial review of legislation though not textually provided for in the U.S.
(1803) (USA) Constitution (Marshall CJ, drawing on Hamilton, Federalist No. 78).

McCulloch v Maryland, 17 US Illustrates the Madison–Hamilton federal-power dispute (national bank; broad
316 (1819) (USA) reading of federal power).

'Due process' used to strike down worker-protection legislation as violating

Lochner v New York, 198 US 45 employer/employee 'freedom of contract' — later repudiated (Nebbia v New York
(1905) (USA) (1934); West Coast Hotel v Parrish (1937)); influenced India's deliberate rejection of a
due-process clause.

Palko v Connecticut, 301 US Only rights 'of the very essence of ordered liberty' bind the states via 14th
319 (1937) (USA) Amendment due process (Cardozo J) — foundation of 'due process traditionalism.'

Griswold v Connecticut, 381 Recognised marital privacy right; Harlan J stressed respect for history and 'basic
US 479 (1965) (USA) values... of our society.'

Lawrence v Texas, 539 US 558 Struck down criminalisation of homosexual sex; majority cited European
(2003) (USA) jurisprudence — Scalia J dissented, criticising selective use of foreign law.

'Practical concordance' — constitutional principles must be interpreted to harmonise

Southwest Case, 1 BVerfGE 14
with the whole Constitution; floated the idea some constitutional provisions could
(1951) (Germany)
themselves be void if contrary to more fundamental principles.

Luth Case, 7 BVerfGE 198 Basic Law establishes an 'objective order of values' (objektive Wertordnung) binding
(1958) (Germany) all branches of law.

Kesavananda Bharati v State 'Basic structure' doctrine — Parliament cannot amend the Constitution so as to
of Kerala, 1973 SC 1461 (India) destroy its basic/essential features.

Minerva Mills v Union of India, Applied basic structure doctrine to strike down amendments granting Parliament
AIR 1980 SC 1789 (India) unlimited amending power.

S. R. Bommai v Union of India,

Secularism affirmed as part of the Constitution's 'basic structure.'
3 SC 1 (1994) (India)

Mahadeb Jiew v Dr Sen, AIR

Judicial warning against uncritical, wholesale borrowing of American precedent.
1951 Cal 563 (India)

J. Nold KG v EC Commission, ECJ will not permit EU measures incompatible with fundamental rights recognised in
Case 4/73 [1974] ECR 491 (ECJ) member states' constitutions — judge-made EU rights protection.

Van Gend en Loos, Case 26/62

Direct effect of EU (then EC) law; foundational 'constitutionalising' decision.
[1963] ECR 1 (ECJ)

Parti Ecologiste 'Les Verts' v

Parliament, Case 294/83 ECJ describes EU founding treaties as the Community's 'basic constitutional charter.'
[1986] ECR 1339 (ECJ)

Edinburgh & Dalkeith Railway

No UK court may hold an Act of Parliament void — underpins UK's 'flexible', sovereign
v Wauchope (1842); Sillars v
constitution.
Smith (1982) (UK)

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 Comparative Constitutional Law — Exam Notes

2. Master Jurist / Scholar Table

Jurist Key Contribution
Classic definition of a constitution; six classificatory axes (written/unwritten,
K. C. Wheare rigid/flexible, supreme/subordinate, federal/unitary, separated/fused powers,
republican/monarchical).

Constitution as antecedent to, and constitutive of, government; must be 'real',

Thomas Paine
comprehensive, and fundamental/higher law.

'Ancient'/organic view of the constitution as an evolving partnership across

Edmund Burke generations; prescriptive constitutionalism tempered by universal standards of right
conduct.

Founded the modern concept of sovereignty — ruler's right to dictate law without
Jean Bodin
being bound by it (Les Six Livres de la République, 1576).

pouvoir constituant (constituent power of the people) vs pouvoir constitué

Abbé Emmanuel Sieyès
(constituted government power).

Five defining characteristics of constitutionalism; thesis of internal erosion of

Dieter Grimm statehood and the impossibility of reconstructing constitutionalism at the
international level.

Ancient vs modern constitution distinction; republican (Madison) vs liberal (Hamilton)

Martin Loughlin constitutionalism; critique of 'multi-level constitutionalism' as lacking democratic
grounding.

Federalist No. 78 — judiciary as guardian/enforcer of the Constitution; basis for

Alexander Hamilton
Marbury v Madison.

Checks and balances/separation of powers (not courts) as the primary constitutional

James Madison
safeguard; initial scepticism about a Bill of Rights.

Legal principles (distinct from rules) as a requirement of justice/fairness, carrying

Ronald Dworkin
'weight'; principle vs policy distinction (Taking Rights Seriously, 1977).

H. L. A. Hart Legal positivism — target of Dworkin's critique.

Purposive interpretation; principles as objective purpose of legal texts; 'level of

Aharon Barak
abstraction' approach in Israeli jurisprudence.

'Level of generality' problem in specifying constitutional principles; view that

Mark Tushnet
comparative constitutional law only matured as a discipline after 1989.

Systematic distinction between universal PRINCIPLES and local/traditional VALUES in

Gary Jeffrey Jacobsohn
constitutional interpretation.

Critique of a 'jurisprudence of values' as unprincipled/manipulable; concept of

Gustavo Zagrebelsky
'practical concordance.'

Donald Kommers Explained German 'objective order of values' and 'practical concordance' doctrine.

'Due process traditionalism' — only rights fundamental to 'ordered liberty' bind the
Benjamin Cardozo
states (Palko v Connecticut).

Sociological account of mores as the true source of standards of right and wrong
William Graham Sumner
(Folkways, 1907).

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 Comparative Constitutional Law — Exam Notes

Jurist Key Contribution

Michel Rosenfeld & András Editors, Oxford Handbook of Comparative Constitutional Law; systematised the
Sajó history, uses, purposes, challenges and methodology of the discipline.

Practical challenges of comparative law (linguistic/cultural unfamiliarity); critique of

Richard Posner
Dworkin's principle/policy distinction.

Pierre Legrand 'Thin' vs 'thick' description in comparative law; risk of 'getting lost in translation.'

Andrzej Rapaczynski Positive vs negative constitutional influence/borrowing.

Founder of comparative constitutional law as an academic discipline (interwar

Boris Mirkine-Guetzevitch
period).

Shifted constitutional scholarship toward a value-oriented, judicial-review-centred

Carl J. Friedrich
comparative approach post-WWII.

3. Glossary of Key Terms

Term Meaning
Political/legal theory of LIMITED, accountable government — separation of powers,
Constitutionalism
rule of law, protection of individual rights, popular/democratic legitimacy.

The (contested) process of extending liberal-legal constitutionalist norms and judicial

Constitutionalisation discipline to ever wider fields of public power, including transnational/international
governance.

Constituent power (the people's original law-making power to create a constitution)

Pouvoir constituant / pouvoir
vs constituted power (government power created BY the constitution, and thus
constitué
subordinate to it).

Practical concordance German doctrine requiring all constitutional principles/values to be harmonised so

(praktische Konkordanz) none is enforced at the expense of another.

Indian doctrine (Kesavananda Bharati) that Parliament's amending power cannot be

Basic structure doctrine
used to destroy essential/basic features of the Constitution.

US interpretive approach treating rights as constitutionally protected only if deeply

Due process traditionalism
rooted in a nation's history and traditions (Cardozo, Palko v Connecticut).

Theory (associated with Gunther Teubner) that self-created rules of private global
Societal constitutionalism
actors can function like constitutions for particular social sectors.

Theory that national, regional and functional/international legal regimes together

Multi-level constitutionalism form a composite ('conglomerate') constitutional order compensating for the decline
of state constitutions.

Legal transplant / The adoption (or deliberate rejection) by one constitutional system of institutions,
constitutional borrowing doctrines or norms drawn from another system.

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