Nearly a generation ago, Justice Scalia and Justice Breyer debated the legitimacy and value of using foreign law to interpret the American Constitution. At the time, the matter was controversial and invited the interest of both judges and scholars. Foreign law had, after all, been relied on in significant cases like Roper v. Simmons and Lawrence v. Texas. Many years on, there is still much to be debated — including the purpose and potential benefits of judicial engagement with foreign law — but “comparative constitutional law” has unquestionably emerged as a field of study in its own right. We have seen the publication of scores of articles and books that compare constitutional systems and elaborate reflections by judges over the nature and form of comparative judicial reasoning. Today, it no longer seems necessary to demonstrate, as Professor Mark Tushnet once did, “the possibilities of comparative constitutional law.”
Though the study of comparative constitutional law may not quite require a defense at present, much remains to be settled. In the late 1990s and early 2000s, the question — crudely put — was whether we could compare the constitutional law of different nations. Could a comparison between rules and developments in country A and country B occur in an intelligible and meaningful fashion? Though comparative constitutional law was not new to the American legal academy, it had declined in importance over the years, thereby requiring the field to be somewhat reborn. Now that comparisons between constitutional orders are commonplace, greater attention is being devoted to a different question: how is comparative constitutionalism to be conducted? The question implicates tasks that stretch far beyond the judicial citation of foreign legal materials. The recent crisis of constitutional democracy and the phenomenon of democratic backsliding has, for example, led to an outpouring of comparative literature. It seems natural, even important, to compare the authoritarian turn in, say, Hungary, where Viktor Orbán was recently reelected as Prime Minister, with developments in countries such as India, Poland, Russia, Turkey, and Venezuela — and perhaps to reflect on President Donald Trump’s term in office in light of the global experience. But the ease of making such comparisons masks the hard question of precisely how to conduct such inquiries.
Comparative and Foreign Law | Constitutional Law | Law
Is a Science of Comparative Constitutionalism Possible?,
Harv. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3672