Comparability of Constitutions
While some scholars observe a recent revival of comparative constitutionalism, the question is, of course, whether constitutions are comparable at all.
The search for the best constitution is as old as political theory.
In Plato’s dialogue, “Protagoras” the “art of politics” (politike techne) is proposed by Protagoras as a precondition for living together harmoniously.[3] In “Nomoi”, Plato links the quest for a desirable constitution with a fair and fixed distribution of lands and possessions.[4] In Aristotle’s “Politics”, different forms of state “constitutions” (politeiai) are examined by referring to a collection of 158 examples of Greek “citystates” (poleis), an impressive early example of empirical constitutional comparison. Aristotle evaluates the advantages and disadvantages of the different forms of governance and their modifications and compares democracy, oligarchy, aristocracy and monarchy. For his time and the needs of political reform, even then a preference to the “polity” (politeia) as a moderate form of democracy (including a stable middle class) becomes apparent.[5]By now, every country in this world has a unique constitution influenced by its history and culture and often its neighbours, conquerors and liberators. No country has simply adopted another country’s constitution.[6] Why then, would we dare to compare constitutions if they are so idiosyncratic? The authors of Writing Constitutions are in the tradition of many comparative constitutionalists when they conclude that constitutions are comparable to a significant degree as they contain many joint features. Almost all constitutions contain a similar structure and common core legal instruments even though the details of those differ from each other. Almost all constitutions contain a catalogue of human rights (to be covered in Volume II) and mechanisms such as elections, dismissals, impeachments, referendums, states of emergencies or constitutional amendment clauses.
While it is a challenge to capture those mechanisms in their context, the authors believe it is important to systematically take account of and compare those solutions to create a repertoire for those who aim to change their constitution. Writing Constitutions is therefore firstly an empirical study of the essential elements that modern constitutions contain, before drawing any conclusions.Any comparative study of empirical constitutional normativity is based on certain premises from which the authors start. The search for comparative models of normative statements on certain elements of a constitution is by itself already marked by methodological assumptions that implicitly assume comparability. The starting point is first of all the method of “functional comparativism”, i.e. the legal comparator
searches for norms that reflect the respective functions attributed to them in essentially the same terms as derived from conceptual wording: the systematic, the contextual and the purpose-oriented (“teleological”) interpretation. This already opens ample scope for interpretation and assumptions which the comparator must be aware of.[7]
The “functional method” is strongly criticised for neglecting idiosyncrasies (“identity”) and the historical-cultural context of a constitution, for paying homage to legal ethnocentrism or postmodern hegemonialism.[8] However, this is partly due to a misunderstanding of the functional method, especially if it is only focused on the function and disregards the cultural context. Functional comparative law should therefore be viewed against the background of the cultural context[9] and it can then also be described as “contextual legal comparison” or “contextual functionalism”.[10]
As authors of this Volume I of Writing Constitutions, which is dedicated only to state institutions and competencies, the editors are well aware of this basic methodological requirement. The comparison in Writing Constitutions is based on textual similarities, which favour a functional equivalence and show a comparable cultural context.
This today applies to almost all European constitutions, not only in the European Union, but also in the wider circle of the Council of Europe. The influence of the ideas of the Enlightenment on the French and American revolutions and their constitutionalisation in the eighteenth century also suggests a comparison of related institutions and principles. This becomes even more visible with regard to fundamental and human rights since the Declaration des Droits de l’Homme (1789) and the internationalisation of human rights through international and regional pacts and conventions (Volume II of Writing Constitutions).An adequate comparison becomes more difficult for states with a post-colonial past, above all in Asia and Africa and partly in Latin America, which were institutionally particularly influenced by the USA, but have demonstrated independent constitutional developments.[11]