LAW

Comparative Constitutional Law

Why Compare?
 Q1: E-TEXT
Module ID 1: Why Compare? The Value of Comparative Law

Module Overview: This module is intended to be an introduction to comparative law in

general, and comparative constitutional law in particular. We start this course by exploring
whether comparative law has any value, and when (and whether) it is instructive to look at
other jurisdictions.

Subject Name: Law

Paper Name: Comparative Constitutional Law

Module ID: 1

Pre-requisites: Knowledge of constitutional law, comparative law.

Objectives:
- Introduce students to the value of comparative law
- Understand why courts use laws of other jurisdictions
- Overview of methods in comparative constitutional law

Keywords: comparative constitutional law, comparative law, value of comparative law,

foreign law

Learning outcomes:
Insight into the questions raised in this module, including whether comparative law is
possible, given the differences in contexts and social realities between jurisdictions and also
the utility and value of comparative constitutional law.

Introduction, or The Preponderance of Foreign Law in India

It is a well-known facet of Indian political history that our Constitution is a mélange of

constitutional inspirations from across the world. We seem to have borrowed from countries
that no longer exist, like the Weimar Republic and the USSR; from a country that does not
have a written constitution, the United Kingdom; from a constitution that is no longer used by
the country it was written for, the Union of the South Africa Act, 1909; from a then recently
established post-war democracy, Japan; from a liberal democratic constitution clearly written
for a country with a predominantly religious demographic, Ireland; and some other countries
with steeped constitutional traditions, Australia, Canada and the United States. Our efforts to
understand the unique coming together of these ideas in the Constitution of India requires us
to broaden the focus of our interest and inquiry to the constitutional traditions of other
countries, and our place in it.

Indian courts too, have been steeply immersed in the use of comparative materials from other
jurisdictions and the use of international covenants as a means of justifying their decisions.
Most recently, the conundrum of using foreign materials came to head in the appeal of the
Naz Foundation judgment of the Delhi High Court in Suresh Kumar Koushalin the Supreme
Court where the Court held that foreign law could not be applied “blindfolded for deciding
the constitutionality of a law enacted by the Indian legislature”.1 However, this is a highly
questionable conclusion and in interpreting universal notions of dignity and other human
rights, the Court has never shied away from using these sources as a means of expanding on
and buttressing their conclusions.

Even after Koushal, Justice Radhakrishnan found it fit to use international human rights
principles, including a wide-ranging set of judgments and legislations at the core of his
reasoning, to clarify that the umbrella of anti-discrimination provisions in our Constitution
should extend to Transgenders.2
In fact, under the Directive Principles of State Policy, the Indian Constitution recognizes that
the “State shall endeavor to … foster respect for international law and treaty obligations”.3 In
Vishaka, the Supreme Court state inter alia that “any international convention not
inconsistent with the fundamental rights and in harmony with its spirit must be read into these
provisions to enlarge the meaning and content thereof, to promote the object of the
constitutional guarantee.”4 In a slightly dated study, Smith found that Indian courts had relied
on, or used foreign law (including international law sources as well as other foreign
jurisdictions) in nearly a quarter of their cases until 2004.5

These initial observations remind us of the preponderance of the use of comparative materials
in the birth and evolution of the Indian State as a means of furthering avowed constitutional
ideals, and the inevitable need for students of Indian law to engage with, and make sense of
these influences. Over a hundred and fifty countries and other supra-national entities can
boast of adopting constitutions and incorporating revisions that include a bill of rights and
enshrine mechanisms for judicial review. But beyond these seemingly instrumentalor
incidental reasons, there are strong intrinsic reasons why the pursuit of comparative
constitutional law is an important and fruitful exercise.

Fundamentally, unlike other subjects that students of law are engaged in, comparative law is
not a body of rules and principles, but rather a method of analysis, and an account of the inter-
relationships between diverse legal systems and their rules. This knowledge does not only
quantitatively improve the breadth of our understanding, but qualitatively deepens the
examination of our premises.6 A self-reflective comparison of legal institutions is a means of
acquiring new insights about one’s own legal system, and the place of our legal institutions in
global conversations about the extent and validity of norms. But before we quest after the

1
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, at ¶52.
2
National Legal Services Authority v. Union of India, WP (Civil) No. 604 of 2013, ¶21 – 66.
3
Article 51, Constitution of India.
4
Vishaka and Others v. State of Rajasthan and Others, AIR 1997 SC 3011.
5
Adam Smith, Making Itself At Home – Understanding Foreign Law in Domestic
Jurisprudence: The Indian Case, 24 BERKELEY INTERNATIONAL LAW JOURNAL 218-272
(2006), at 241. Also see, V. G. Hegde, Indian Courts and International Law, 23 LEIDEN
JOURNAL OF INTERNATIONAL LAW 53-77 (2010).
6
Kai Schadbach, The Benefits of Comparative Law: A Continental European View, 16
BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 331 (1998) at 337.
exciting possibilities of comparative constitutional law, we need to understand whether
comparison is possible at all.

Is Comparison Possible?

As we have seen in the Indian case, the permeation of constitutional ideas occurs at several
disparate stages in the life cycle of modern constitutions – as models in the drafting stage, or
in constitutional interpretation. Recent instances at the European Union also inform us of a
form of permeation that occurs not only solely across national jurisdictions, but also at the
supra-national level. The question of whether any meaningful comparison and assimilation of
constitutional ideas is possible lies at the core of debate in the second half of the twentieth
century between Alan Watson and Pierre Legrand, which turns on appreciating the place of
law within broader social structures.

In his famous work, “Legal Transplants: An Approach to Comparative Law”, Watson

examines the migration of Roman civil law across several European legal systems.7 He claims
that legal transplants, which consist of transferring rules between legal systems, are the
primary instruments of legal change. In light of overwhelming evidence of the widespread
transfer of rules, Watson concludes that there is no close relationship between legal rules and
the society within which they operate. As a result, he urges students of comparative law to
study these transplants as a means of appreciating various legal cultures. This functionalist
method neutralizes the effect of cultural contexts in comparison. Similarly, Zweigert and Kotz
proposed that legal systems often offered similar solutions to similar problems, explaining
away diversity.8

In an equally famous response, Legrand suggests that Watson and other functionalists reduce
laws to “bare propositional statements”, devoid of historical, political and ideological
contexts.9He argues that interpretative communities operate within a framework of
“intangibles”, with their own “normative force”, which renders interpretation to be a
particular understanding of a rule, influenced by a series of factors far beyond the simple text
of a legal proposition.10 By extension, the act of interpretation would result in a different
conclusion had the interpretation occurred in a spatially or temporally separate judicial arena.
For Legrand, comparativists were better off identifying differences across legal systems,
which could only be imperfectly overcome, to understand diverse legal systems. The act of
comparison itself would be futile.

Indeed, the law is steeped in culturally specific contexts. This is only more so of
Constitutions, which are documents of hope for societies that lie between a past they are
trying to overcome an oppressive past and set the course for an uncertain future, in unique

7
ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (1974).
8
K. ZWEIGERT AND H. KOTZ, INTRODUCTION TO COMPARATIVE LAW (1988) at 39-40.
9
Pierre Legrand, What ‘Legal Transplants’? in D. NELKEN AND J. FEEST(eds.), ADAPTING
LEGAL CULTURES (2001) at 59.
10
Ibid., 58.
and specific circumstances less than ideal for stability.11 However, the assertion that laws
change when they migrate from one to another context does not, and should not lead to the
conclusion that transplants are impossible, or unworthy of scholarly attention,12 especially
when the migration of constitution ideas is as far-ranging as we have so far evidenced.

In a seminal essay, Frankenberg reminds us that abandoning the comparative project would
freeze tradition and eliminate the possibilities of meaningful self-reflection, but the task of
comparison needs to avoid the “muddling through” that arises from ignoring variety and
heterogeneity.13For the comparative project to be worthwhile, it would require researchers to
identify their own assumptions while studying other legal cultures, refrain from projecting
their situated impulses onto the object of their attention and decenter their personal points of
view in order to be able to appreciate the new and different.14 The comparativist must be able
to move back and forth between the text of legal rules and their application in particular
contexts, without wedding themselves solely to either, in their endeavor to compare. Even if it
possible to compare thusly, albeit with due care and attention, why must we?

Why Compare?

In a volume aimed at teasing out the predominant methods and questions in comparative
constitutional law, Donald Kommers forwards four foundational reasons. 15First, it exposes
students to a range of models that belie the foundations of constitutional justice. Second,
comparison allows us to rise above our particularistic circumstances to appreciate and draw
out more general principles. Third, it enables the recognition that there is much between
constitutional democracies in their respect for human rights and democratic
governance.16Fourth, it sensitizes us to recognizing differences that would allow us to
reassess our positions on some of these foundational questions.

Notice how the orientation of Kommers’ account is heavily influenced by the promise of
universalistic accounts of principles of constitutional government, which may not
satisfactorily attend to the kind of irreconcilabilities discussed in the previous section.
Kommers argues that, as a disclipine that straddles the boundaries of legal and political
philosophy, it could potentially generate principles that transcend culture. The
acknowledgement of the fact that constitutional law is part of “man’s legacy in the struggle

11
Kim Scheppele, A Constitution Between Past and Future, 49(4) WILLIAM AND MARY LAW
REVIEW 1377-1407 (2008).
12
James Whitman, The Neo-Romantic Turn, in P. LEGRAND AND R. MUNDAY(eds.),
COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS (2003) at 341-342.
13
Gunter Frankenberg, Critical Comparisons: Re-Thinking Comparative Law 26(2)
HARVARD INTERNATIONAL LAW JOURNAL 411-455 (1985) at 453-455.
14
Ibid.,at 413.
15
Donald Kommers, Comparative Constitutional Law: Its Increasing Relevance, in MARK
TUSHNET AND VICKI JOHNSON (eds.), DEFINING THE FIELD OF COMPARATIVE
CONSTITUTIONAL LAW (2002) at 62.
16
While Kommers is particularly concerned about American exceptionalism, this observation
rings true for other tendentiously exceptional accounts.
for freedom and limited government” allows us to appreciate some of these universal strains.17
Nevertheless, our account of the motivations for studying this field can be further improved
upon.

To Ran Hirschl, the “convergence, resistance and selective engagement with the laws of
others” reflect precisely these strains of particularism and universalism, throwing up
competing visions of how we see ourselves, and how we wish to be, as a political
community.18 Contending that the constitutional experiences of others may be helpful in
understanding the present and future of those experiences, he identifies three primary
motivations that transcend this particular ideological divide namely, necessity, politics and
inquisitiveness,19 which we will briefly explore here.

The task of governing political communities effectively needs to be cognizant of the

challenges that previous such attempts faced, from the Roman Empire to the European Union,
especially to accommodate and respect difference and diversity, or to frame the terms of
citizenship. Comparative materials also offer refuge to marginalized groups seeking to
legitimize their claims when their jurisdictions fail to grant them recognition. Our previous
discussion about Naz and NALSA are cases on point.

Oftentimes, comparative engagement validates the promotion of an ideological outlook, or a

conception of a good society that another constitutional arrangement might have effectively
facilitated. Our own Constitution is born from our drafters’ appreciation of the promise of a
Bill of Rights (from the US) as foundational to a liberal democracy, while recognizing the
need for a unique socialist method (inspired by USSR) that could capture a model for
redistributive justice that would unify a fragile nation and correct the extensive income
inequality. In his work, Hirschl explores Simon Bolivar’s invocation of constitutional
principles from a range of jurisdictions while evolving a constitution for Venezuela. 20
However, Bolivar remembers, and Hirschl reminds us of Montesquieu’s caution that
constitutions are particular to the people, territories and sovereigns they are addressed to.21
We too would be well served to keep it in mind.

17
Donald Kommers, The Value of Comparative Constitutional Law, 9 JOHN MARSHALL
JOURNAL OF PRACTICE AND PROCEDURE 685-695 (1975-76) at691.
18
RAN HIRSCHL, COMPARATIVE MATTERS: THE RENAISSANCE OF COMPARATIVE
CONSTITUTIONAL LAW (2013) at 6.
19
Ibid., at 148.
20
Ibid., at 133-138.
21
“Laws should be so specific to the people for whom they are made, that it is a great
coincidence if those of one nation can suit another. They should be relative to the physical
qualities of the country; to its frozen, burning, or temperate climate; to the quality, location,
and size of the territory; to the mode of livelihood of the people, farmers, hunters, of
pastoralists; they should relate to the degree of liberty which the constitution can admit, to
the religion of the inhabitants, to their inclinations, to their wealth, to their numbers, to their
commerce, to their mores, to their manners…” MONTESQUIEU, THE SPIRIT OF LAWS (1748 |
1989) at 8.
The third motivation that Hirschl explores is inquisitiveness, or “intellectual curiosity”. These
may simply be an attempt to better understand, as he says, “a general logic of matters.”22 The
best explication of this method is the groundbreaking work of Elkin, Ginsburg and Melton,
who attempted to identify the causes of constitutional endurance from an institutional
perspective.23 Using cross-national historical data surveying every constitution drafted since
1789, they found that certain aspects of design could potentially lower the risk of
constitutional death (on average, at nineteen years). These included specificity, inclusiveness
and flexibility. A conclusion of this sort would never have been possible were it not for an
inquiry whose scope was as vast as this.

Even if we can now begin to appreciate some of the motivations behind comparative study,
we are yet to see how they play out during comparative analyses.

How Compare?

Various methods of appropriating and assimilating the learning from other constitutions are
accompanied by varying degrees of skepticism about the consequences of the borrowing of
solutions developed in one system to resolve problems in another. A pre-eminent scholar of
the field, Mark Tushnet explored three pre-dominant methods through which constitutional
borrowing takes place: functionalism, expressivism and bricolage.24

The functionalist case is premised on the fact that particular constitutional provisions
facilitate particular functions in a system of governance. To these scholars, comparative
studies perform the task of identifying those functions and illustrating how different
provisions serve similar functions in different systems, or how similar provisions serve
different functions in different systems. The functionalist may then be able to advocate
alternate constitutional arrangements to improve the task of performing that function in a
local jurisdiction. Note how this is similar to Watson’s approach discussed earlier in that it
may gloss over cultural and other locally specific aspects of constitutional interpretation.

As the task of comparison requires researchers to identify or select the functions and
provisions that drive this inquiry, they often exclude specific institutional arrangements to
allow those provisions to become comparable.25 In this sense, the project of functionalism is
always an exercise in some level of abstraction. In the event that these relevant details are
accounted for, the numbers of cases that are comprehensively comparable are often too small
to engender generalizable conclusions. It is still possible to supplement this exercise with a
theoretical account of how the variables under comparison are meaningful and substantially
relevant.

22
Supra note 18, at 148.
23
ZACHARY ELKIN, TOM GINSBURG AND JAMES MELTON, THE ENDURANCE OF NATIONAL
CONSTITUTIONS (2009)
24
Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108(6) YALE LAW JOURNAL
1225-1309 (1999).
25
Ibid., at 1267-69.
Under the expressivist view, constitutions emerge from the specific historical contingencies
that shape a nation and uniquely vocalize the aspirations of its peoples’ ways of
understanding themselves as political beings. Expressivists also go on to argue that each of
constitutions shapes the communities they operate within, inimitably. Legrand’s dilemma
about whether comparison is at all possible speaks to this concern. For these scholars,
comparative constitutional law is a means of validating the precise nature of these cultural
claims that directs our attention to an examination of our constitutional characters, rather than
taking it for granted.26 Here, looking elsewhere is a means of re-emphasizing the culturally
contingent nature of our own constitution.

Borrowing from the anthropologist, Clause Levi-Strauss, Tushnet posits the idea of bricolage
as a third mode, i.e “the assembly of something new from whatever materials available at
hand.”27 This method is a highly rationalized form of textualism that refrains from imputing
any degree of intentionality to the drafter of another constitution, from either functionalist or
expressivist angles. Here, drafters select almost at random whatever is at hand, and embed
their sense of rationality to it through their unique assemblage of these materials. Elsewhere,
Frankenberg likens this process almost to shopping for furniture at an IKEA store, where
customers can pick and put together parts as they see fit.28 While there can be many ways of
interpreting such a constitution, Tushnet reminds us that looking for one that preserves the
“structural integrity” to the intentions of the drafters is futile.29

In Conclusion, or the Upshot

Over the course of this piece, we have explored different and at times competing rationales to
understand the methods and motivations behind an exercise of constitutional comparison. As
students of this subject, we would resort to different methods often one after the other, almost
like a process of filtration, to best assimilate the teachings of other constitution for our
particular constitutional contexts. No one explanation can or will sufficiently surmount the
challenges that comparison demands. An interesting and methodologically useful rubric that
harmonizes an explanation of the interplay of these motivations is Sujit Choudhry’s idea of
dialogical interpretation, where comparative materials operate as an interpretative foil that
exposes factual and normative assumptions underlying one’s own constitutional
order.30Howsoever we wish to take this forward, Frankenberg’s exhortation for care and
sensitivity in our perspective will best allow us to use experiences of others meaningfully.

Summary:
Indian Courts often use and cite foreign laws and judgments. What is the value of
comparative law? This module provides an introduction to the course and explores the

26
Ibid., 1281.
27
Ibid., 1286.
28
Gunter Frankenberg, Constitutional Transfers: IKEA Theory revisited, 8(3) INTERNATIONAL
JOURNAL OF CONSTITUTIONAL LAW 563-579.
29
Ibid., 1287. For example, an argument like the basic structure doctrine would be impossible here.
30
Sujit Choudhry, Migration as a new metaphor in comparative constitutional law, in SUJIT CHOUDHRY
(eds.), THE MIGRATION OF CONSTITUTIONAL IDEAS (2006) at22.
different perspectives on the value and utility of comparative law, particularly comparative
constitutional law.