Comparative Constitutional Law

 Why Study Comparative Constitutional Law

Constitutionalism fundamentally shapes social power relations and the degree of freedom within a
society.
1. Comparative study of law – comparing constitutional systems helps us better appreciate and
understand our own system and broaden our world view
2. Comparative law - can provide insights for constitutional design
3. Comparative constitutional law - is essential in the context of the creation and development of
international organizations. (The EU is an illustrative example)

1. 2 + 2 = 5
2. Orwell and Radiohead
3. Tip - The earlier you comprehend that law is not ‘black or white’ the better
Constitutional Law in Context
• Need to place the constitution in proper context conerning - text, meaning,history
• Examine the structure and function of the constitution within the broader society
• A fundamental aim when learning the law is to develop and apply critical thinking skills

1. What is a constitution?
Two main understandings of a Constitution.
1. Formal – Narrow
• does not describe the whole collection of norms, legal and non-legal, but rather a selection of them
which has usually been embodied in one document or in a few closely related documents.
→ Almost exclusively legal documents
→ Constitution as a text – A written document
2. Functional – Broad
→Describes the whole collection of rules which establish and regulate or govern a country or polity
→ partly legal norms, in the sense that courts of law will recognize and apply them and
→ partly non-legal or extra-legal norms, taking the form of usages, understandings, customs,
conventions, interpretative context or practices which courts do not necessarily recognize as law, but
are no necessarily less effective in regulating societal interactions than the formal rules or laws
strictly.
→ Constitution not only as a text, but beyond a single formal document
→ Captures de jure and de facto constitutional and socio-political norms
The Constitution may provide for constitutional change
 Amendment- Establishes the extent to which it may be changed (amendment)
 Is it difficult or easy to amend?
Difficult: Rigid
Easy: Flexible
 Constitution-makers: Do we want a constitution that is fundamental and unchanging law (i.e.
rigid) or one that is work in progress and open todebate (i.e. flexible)?
 Some provisions may be unalterable, some may require higher majority,some follow general rules

Sovereignty
1. Who has the ultimate authority to exercise constitutional authority?
2. Who has the right to establish and modify the constitutional rules of the game?
 Popular sovereignty
• Sovereignty rests with the people – ‘we the people’ – social contract where the people entrust
government with powers and the authority to govern on their behalf
 National sovereignty
• Sovereignty is exercised by the nation’s representatives as laid down in the constitution
 State sovereignty
• Applies to federal systems, in situations where the federal government as well as the sub-units
(‘states’) may each have a claim to exercise sovereign authority
 Parliamentary sovereignty
• Where a legislature is supreme and has ultimate authority
 Royal Sovereignty
• Where the monarch is sovereign and constitutional authority derives from them monarch.
 Pluralistic sovereignty or pluralism
• The supreme authority does not reside in a particular individual or structure but constitutional shifts
between different actors
 2. What is a constitution designed to do?
Balance: An Essential Element of Constitutional Thought
 Relationship between those that exercise public power, authority, and influence and individual
self determination
 Relationship between public actors operating on the same level
 Relationship between public actors operating on different levels of governance
 Relationship between competing constitutional norms and societal values
A constitutional order consists of
1. Foundational Values
2. Institutional Framework
3. Constitutional Model
• Each of these elements are designed to secure the common good
 3. What are the core features of a constitution in
contemporary constitutionalism?
 Ensure limited government

 Establish & maintain the organs that constitute the government

 Delineates power between the main organs of government

 Delineates the boundaries between the exercise of public power and individual self-determination

and collective self-determination

 Confers rights on individuals against government action

 To a certain degree entrenches central organs and individual rights against legal change.

 Normative hierarchy with a special status and social significance

Two Main Strands to achieve these objectives

1. Institutional Law (Process)

- governs the way how the state and its institutions function. i.e. for example the terms and the powers
of the legislature, executive, voting composition

- designed to ensure balance the relations between distinct organs within the socio-political polity

2. Human Rights (Substantive)

- in the classical sense, prohibition of torture, freedom of speech, due process

- designed to protect the citizen against the state, balance the relations between the exercise of public
power and individual self-determination

3 core elements in Contemporary Constitutionalism

1. Respect democracy

2. Adherence to the rule of law

3. Safeguard human rights

Why are such elements necessary in a socio-political entity?

→To secure a balanced constitutional order

Factions are

“A number of citizens, whether amounting to a majority or minority of the whole, who are united and
actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or
to permanent and aggregate interests of the community.” Federalist Papers No. 10

The importance of faction

 Each branch has its own distinct institutional perspective based on their members own
interests, constituencies, training, appointment or electoral process.
 Madison contends that it is not possible to remove the causes of faction, but it may be
possible to control its effects
 A minority faction can be controlled by popular vote, it will lose to the majority.
 A majority faction, on the other hand, through popular government can infringe on both the
public good and the rights of other citizens.

How to address the problem of faction?

Constitutional Models of Governance designed to combat the problem of faction and ensure a balance
within a polity.

1.Separation of Powers

• divides the states into 3 branches of government each representing its own independent
power/function

• separation prevents concentration of power (often the basis of tyranny) and provides each branch
with weapons to fight off encroachment by the other two branches.

2. Checks and Balances

 utilized to prevent the concentration of any actor from being able to concentrate power.
 the ability for different structures of government to limit
– control the actions of an outside structure –
 Ensures that no actor can complete all its tasks without the assistance of another actor.

3. Federalism

Federalism-Territorial sub-units whose rights and powers are set out in the constitution

Unitary - the sub-units that exist obtain their power from the central government
“There would be an end of everything were the same man, or the same body, whether of the nobles or
of the people to exercise those three powers that of enacting laws, that of executing the public
resolutions, and that of judging the crimes or differences of individuals. ” Montesquieu