Document Type
Book Chapter
Publication Date
2015
Abstract
One of the most significant developments in the study of constitutional law in recent years has been the comparative turn in the field. Although debates continue over whether and how domestic courts should rely on (or even refer to) foreign law in domestic legal disputes, the appropriate methodology for comparative analyses, and the potential and limits of comparative constitutional studies, many scholars and practitioners – including well-known judges – no longer believe that the task of constitutional law is solely domestic in nature. Yet, despite the enthusiasm for comparative constitutional law and the emerging systematization of comparative work, the field has developed unevenly. A few countries figure in numerous studies: the United States; the United Kingdom and other Commonwealth jurisdictions, such as Australia and Canada; Germany; France; Israel; and South Africa. Other nations and even regions are neglected – and not merely because they are small in population or have little significance for international relations. This is neither entirely unexpected nor unintentional. Some countries invariably will inform comparative queries more than others, and the jurisdictional imagination adopted by scholars and practitioners will turn on the curiosities that animate their work.
The uneven development of comparative constitutional law has rendered the field only modestly comparative – focusing on a few select jurisdictions – rather than truly global. In particular, Asia has received less attention than we might expect. Moreover, in Asia, whereas there have been notable contributions on East Asia, rather little attention has been devoted to South Asia. In that region, India is the only country to appear in comparative discussions, but the attention here is also less than we would expect, focusing primarily on questions that are of immediate interest to the West, such as the recognition and adjudication of social rights. This lack of attention is unfortunate because South Asia is a region of vibrant if rambunctious constitutionalism. Many South Asian nations face profound social and political challenges that they seek to address within their specific constitutional traditions.
Disciplines
Comparative and Foreign Law | Constitutional Law | Law
Recommended Citation
Mark Tushnet & Madhav Khosla,
Unstable Constitutionalism,
Unstable Constitutionalism: Law and Politics in South Asia, Mark Tushnet & Madhav Khosla (Eds.), Cambridge University Press
(2015).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4661
Comments
This material has been published in "Unstable Constitutionalism: Law and Politics in South Asia" edited by Mark Tushnet and Madhav Khosla. This version is free to view and download for private research and study only. Not for re-distribution or re-use.