Appendix 2: Comparative Constitutional Law - An Indispensable Tool for the Creation of Transnational Law1

I. A European Perspective

One could justifiably wonder whether the differences between von Bogdandy and Tushnet derive from differences in the geographical and cultural areas in which the two authors frame their research and writings. It is evident that von Bogdandy’s approach takes a European perspective and is especially concerned with the growing formation of a European legal order which can give - according to his research hypothesis - new currency to the project of the ius publicum europaeum: ‘a solidified European context for discussion and reception’, the doctrinal dimensions of which apparently go beyond the existence of the European Union legal system.

This concept, which ‘refers to a collection of principles’, is at the base of the collective constitutional cultures of Europe, even if its interpretation and application in the various national constitutional orders differ.^[383] Within the European polity, the integration of the constitutional experiences of the concerned states is achieved by means of a constitutional discourse which ‘must be conceived of as a conversation of many actors in a constitutional interpretative community’.^[384] It involves in particular European and national judges. But the concept not only facilitates the consideration of the shared constitutional doctrines of the European states, it also has practical - and not merely cultural - relevance. It can be useful to remember that the origins of current thought on this concept are naturally linked to the ascent of the European Court of Justice’s fundamental rights case law. For many years, the Court has undeniably been engaged in investigation into the common constitutional tradi­tions of the various EU Member States.^[385] The relevance of European constitutional traditions has even been recognised by the constitutional courts of the newer Member States. For instance, in its Lisbon decision, the Polish Constitutional Tribunal confirmed ‘the solemn character of constitutional traditions, which are common to the member states’.^[386] The implications of such judicial activity have not been lost on the constitutional and ordinary legislatures of the states concerned.

Alessandro Pizzorusso^[387] rightly suggests that the European constitutional heritage can be identified with the use of comparative law techniques of research and construction, which in turn define the relevant features of the internal legal orders of the Member States. Not only judges and legislators are interested in the use of the concept. International bodies adopt a similar approach when they monitor member state compliance with their funda­mental principles and values. The Venice Commission’s advisory mandate entails setting up a dialogue with the states that are members of the Council of Europe and monitoring the implementation of the provisions of the Council’s legal system aimed at ensuring compli­ance with the fundamental principles and values this institution was created to guarantee.^[388]

This is a well-known effect of the principle of conditionality.^{[389] [390] Commentators recog­nised its importance in the years after the Berlin Wall fell, when former communist and Soviet states first started seeking admission to the Council of Europe, and later member­ship in the European Union. The Venice Commission played a crucial role in advising and supporting democratic transitions in Central and Eastern Europe. Other European bodies were involved in the process too. The institutions of the Council of Europe are allowed to deny accession requests or impose sanctions if its monitoring body finds that a Member State's actions breach accepted norms. In the context of OSCE (Organization for Security and Co-operation in Europe), the ODIHR (Office for Democratic Institutions and Human Rights of OSCE) supports and promotes democracy and the rule of law by observing elections, reviewing legislation and advising governments on the development of their democratic institutions. In both cases - the Council of Europe and OSCE - the functioning of the system implies the elaboration of guidelines of constitutional engineering and the establishment of yardsticks for the evaluation of the treatment of rights and freedoms based on the national traditions of European constitutionalism.}

II. The Continuing Importance of Comparative Constitutional Law

If we keep the European dimension of von Bogdandy's perspective in mind, we can better understand the conclusions Mark Tushnet reached in his contribution. When he considers the general expansion of the field of law in light of the ‘inevitable globalization of consti­tutional law',^[391] his research focuses on the end result in a process which is not limited to Europe and is characterised by a progressive blurring of the geographical boundaries which have traditionally defined the field of comparative law research. However, since this is an ongoing process, I do not believe that studying the varying national constitutional experiences has become irrelevant. In our view, the process towards the globalisation of constitutional law requires a comparative methodological approach. Even within the frame­work of the European Union, geographical boundaries still exist,^[392] and we must take them into account if we want to understand the unavoidable and difficult balancing act involving the states' residual sovereignty and their basic constitutional features, on the one hand, and the exigency of the formation of the transnational (or international)^[393] law of the Union, on the other. In this context, lawyers deal with provisions in the Treaty on the European Union that safeguard the constitutional identity of the Member States or demand compli­ance with the common principles and values whose observance is a conditio sine qua non of continued membership. Both require a comparative approach. The identification of the constitutional identity of a state implies a comparison with other states, and their common traditions are identified by surveying the multiplicity of traditions that exist in the states concerned.

The advent of a common, global legal space characterised by an absence of traditional boundaries will likely depend on the progressive expansion of the effects of globalisation. The expansion of the European Union may be considered - at the regional level - as the first, constituent, step in a long process. We may be observing a transition from the fragmentary experience of the various national legal orders to a global legal space constructed from the raw materials of national experiences - as we see happening today in Europe. Therefore, a compar­ative methodological approach is still important and productive, and not only for the sake of scientific research and knowledge. The comparative methodological approach might even prove more immediately practical and operationally useful than in the past, as demonstrated by the European experience. The European perspective provides a constructive point of view from this side of the Atlantic that is possibly more conducive to the study of the regional phase within a larger process. Superregional effects probably appear more frequently on the radar of researchers who approach the phenomenon from a different perspective.

III. Authoritarian Tendencies and the European Constitutional Traditions

Since 1989 and the fall of the Berlin Wall, the monitoring functions exercised by interna­tional institutions have gained in importance in the context of what has been defined - in a seminal article by Bruce Ackerman^[395] - as ‘the rise of world constitutionalism’. Monitoring bodies now also exercise advisory functions, which should facilitate the spread of constitu­tionalism into new areas. At the end of the twentieth century, the former members of the Warsaw Pact engaged in the process of accession to the Council of Europe, and later to the European Union.

This led, little by little, to the burgeoning of transnational (or international) constitu­tional law, operating under the aforementioned principle of conditionality. However, its relevance to the Member States of both the Council of Europe and the European Union is threatened by the emergence of authoritarian tendencies, a backlash against liberal democ­racy supposedly justified by the primacy of state sovereignty and security, as demonstrated recently in Russia, Hungary and Poland.^[397]

Conditionality is sometimes no guarantee of satisfying results. After admission to the Council of Europe or the European Union, certain states flouted recommendations: Poland has not yet fully acknowledged recommendations to reform its constitutional court made by the governing bodies of the Council of Europe and the European Union on the basis of opinions adopted by the Venice Commission, and Hungary has only partially accepted similar remarks on its judicial organisation.^[398] The attitude of states that do not accept the prevailing norms or their sources put the credibility and usefulness of the comparative approach in defining the European constitutional heritage in peril. But even in these cases, comparative legal analysis and interpretation may yield positive results from a historical perspective. A complete evaluation of recent developments is only possible through exhaus­tive examination of the authoritarian aspects of the mentioned constitutional reforms in light of historical European traditions and the constitutional principles and values of the other European states that inspired the ongoing development of supranational institutions.

IV. The Importance of Interpretation and Application of Constitutional Provisions

Use of the comparative approach yields determinative suggestions for the identification of the basic elements of the relevant European legal doctrines in the frame of constructivism, as mentioned by von Bogdandy in his contribution. Comparison of the various legal orders also contributes to a better understanding of the national identities at stake - and of their differences. Although knowledge of the written constitutional and legislative provisions of the state concerned matters when compliance with the European constitutional heritage is being monitored, its effective interpretation and application in light of the moral and philo­sophical traditions of constitutionalism are equally relevant, a point correctly appreciated by Tushnet. Giovanni Bognetti^[399] emphasised the importance in comparative constitutional law studies of knowledge of the concrete application and interpretation of the constitu­tional provisions concerned. The same exigency is present in the field of constitutional monitoring. If we want to grasp the reality of constitutional experience, we must exam­ine the socially effective result of the way the written texts are understood and the norms that emerge through their interpretation.^[400] This is not necessarily an approach based on a realist theory of the law because even a formal take cannot avoid considering the concrete application of interpretations of legal provisions. The Kelsenian design of the Stufenbau of normative sources construes the practical judicial or administrative interpretation and application of constitutional and legislative texts as the last stage in the epiphany of the crea­tion of law.^[401] Comparative analysis only makes sense if we develop its doctrines while taking the concrete practical use of constitutional and legislative provisions into account.

The experience of the Venice Commission with organisational models of the judiciary clearly demonstrates that its approach is especially pertinent to the exercise of monitor­ing functions. The Commission frequently remarks that the judicial organisation needs to be kept separate from the other powers of state. The Mediterranean model of autono­mous judicial councils has been proposed to the new democracies of Central and Eastern Europe as an institutional tool that could ensure the independence and neutrality of the judiciaries.^[402] However, the Commission added that in countries where a judiciary depend­ent on the executive is a long-standing tradition, this arrangement will also suffice as long as the relevant practices respect judicial independence and neutrality.^[403] It is evident that in this case the Venice Commission does not limit its analysis to the relevant written constitutional and legislative provisions, but also thinks ahead by taking their concrete interpretation into account. It explores whether their application is inspired by the constitutional principle of judicial independence.

Is the credibility of (hard) law being vanquished by soft law according to a contraposition postulated more than 30 years ago?^[404] Soft law does not impinge upon the construction of legal theory insofar as it is similar to, or overlaps^[405] with, well-known venerable concepts ‘such as gentlemen’s agreements, comity, non-binding agreements, or - in English constitutional law - constitutional Conventions’. Moreover, after the contributions of Ronald Dworkin on the subject, the graduated effects due to the regulation of norms are a frequently studied phenomenon.^[406]

In conclusion, recent experience suggests that it is not sufficient to develop a scientific theory; rather, one should also consider its practical application as a means of verifying the theory’s development. Political and moral doctrines, as well as the historical experi­ences of constitutionalism, must be integrated in comparative constitutional law’s studies and researches. For instance, the history of constitutional development in Europe allows us to distinguish between contributions of different states to the spread of constitutionalism by geographical area. Some states have, since the very beginning, been at the centre of the development and implementation of constitutional doctrines while other countries have remained - for varying political and social reasons - at the periphery of those developments or taken part in them in an ephemeral and occasional way. This is why Western European constitutional experience weighs so heavily upon the European constitutional heritage.^[407] Political movements in certain European states have contested this orientation by appealing to ancient national traditions to interpret the doctrines of constitutionalism, but they run the risk of citing historical anachronisms.^[408] Events in certain countries might be worthy of some attention, although, for various reasons, they cannot be construed as landmarks of European constitutional tradition. This is the case, for example, with the Polish Constitution of1791, which was never applied.^[409] Constitutionalism in that country only took root follow­ing the sad experiences of the twentieth century and the fall of the Soviet regime. Historical traditions cannot be invoked to explain the recent constitutional crisis, although the Polish authorities may think they do. The continuing relevance and development of the Magna Carta in the UK are entirely missing in the case of the Hungarian Bulla Aurea,^[410] which was interpreted during the twentieth century as consistently awarding the nobility tremendous privileges. It disregarded the basic principle ofequality oftreatment and non-discrimination - it failed to recognise the dignity and rights of the individual. Therefore, the Bulla does not credibly create precedents for contemporary Hungarian constitutional choices. Recently, the Venice Commission declared that the traditional Russian and Ukrainian institution of the Prokuratura (office of the public prosecutor) is not in compliance with the guide­lines that safeguard human rights and the rule of law.^[411] Moreover, doubts arose about the compatibility with the principles of the European constitutional heritage of the references in the Russian Constitution (Article 131) to traditions of that local government, whose social orientation Alexander Herzen appreciated.³³

V. A Common Endeavour

The examples given above all concern the organisation of the powers of state, which are closely monitored by the supranational institutions for compliance with relevant principles, such as those which are at the base of the rule of law policies adopted by the Parliament and Commission of the European Union.³⁴ Judges are especially concerned with safeguard­ing human rights and fundamental freedoms. Even in this field, and after the adoption of the EU Charter of Fundamental Rights, comparative constitutional law is still relevant. The European Court of Justice and other courts continue to rely on comparative studies in order to give content to the rights and principles by which the authorities and Member States of the European Union must abide. This arrangement is permanently in flux inasmuch as it is potentially affected by conflicting claims of supremacy of national versus European laws. Miguel Maduro, as quoted above, rightly emphasised that while ‘the EU claim of suprem­acy forces national courts to reconstruct even their national constitutional law... national constitutional claims also shape how EU law is developed and sensitive to national consti­tutional traditions’.³⁵

This implies that judges and lawyers taking part in these developments participate in the creation of law, in some way completing and integrating the written law of the relevant Treaties and national constitutions and legislation. Within this overall framework, we are witnessing a progressive convergence of the different national legal orders - even between civil law and common law, as Tushnet correctly remarks. For instance, the principle of stare decisis resonates through the decisions of civil law judges, particularly when they concern the development of normative innovations or when they are duty-bound to respect the deci­sions of supranational judges such as the European Court of Justice and the European Court of Human Rights.

Scholars and other legal professionals - even those not fulfilling formal legislative or judicial functions - have traditionally played a significant role in the creation of legal orders beyond the existing states, finding inspiration in the states’ common legal herit­age, and this is still the case. Contributions by constitutional and legislative authorities are sometimes lacking or insufficient - especially when there is a dearth of political initiative, or when intervention is limited to grandiose proclamations or the invocation of general principles, effectively leaving room for the other dramatis personae to develop the work in progress.

functions of the prosecutors, but considers the Ukrainian and Russian historical model of the Prokuratura not to conform with European standards and Council of Europe values: it reflects a non-democratic past, it is overly powerful and does not offer judicial guarantees comparable to those offered by similar institutions.

³³ See the two reviews of AM Kelly, The Discovery of Chance: The Life and Thought of Alexander Herzen (Cambrige MA, HUV, 2016) by M Ignatieff, New York Times, 20 May 2016 and GS Morson, ‘Herzen: The Hero of Skeptical Idealism’ (2016) 63 New York Review of Books 18.

³⁴ Communication from the Commission to the European Parliament and the Council (COM(2014) 158 final/2); European Parliament Resolution of 25 October 2016 (2015/2254(INL)).

³⁵ Maduro (n 15) 74.

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European history may illustrate this. The contribution made by lawyers and scholars to the formation of international and transnational constitutional law in light of the spread and acceptance of commonly shared principles and values reminds us of the contribution to the development of the jus commune - in a different economic and social context - by jurists, judges, notaries and professional lawyers, and especially by scientists and legal acad­emicians of the Middle Ages, who directly took part - as Paolo Grossi suggests^[412] - in the reception of Roman law, which itself knew no geographical or political borders. And we must not forget the importance of Savigny's concept of the lawyer's Beruf for legislation and jurisprudence, which envisaged the formation of a common legal unity by taking a novel approach to the traditional legal experiences of the German states of the time.^[413]

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