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Copyright Information
Constitutional court judges' roundtable
Comparative constitutionalism in practice

Sixth World Congress of the International
Association of Constitutional Law
Santiago, Chile, January 12-16, 2004
The Sixth World Congress of the IACL devoted a plenary session to a discus-
sion among sitting constitutional judges of the uses of foreign decisions and
other foreign materials in constitutional adjudication.
Under the title, "Comparative Constitutionalism in Practice," the session
was chaired by the late Professor Louis Favoreu of the University of
Aix-Marseille, a former constitutional judge himself-having served a term
as one of the foreign judges on the Constitutional Court of Bosnia-
Herzegovina. Panelists included judges entrusted with constitutional
adjudication from several countries in Asia, Europe, and the Americas.
Professor Favoreu opened by putting the following three questions to the
panelists:
(1) Do judges in their countries make use of or reference to foreign materials
in constitutional adjudication?
(2) What use, if any, do judges in their countries make of methodologies or
procedures developed in foreign jurisdictions?
(3) Do judges in the panelist's country "borrow" substantive constitutional
solutions or approaches from foreign jurisdictions?
Panelists were asked in each instance to comment on the advantages and
disadvantages of drawing from foreign jurisprudence.
What follows are the largely informal responses of the panelists to those ques-
tions. We have chosen to publish them in a uniform format, more or less as
they were presented at the Congress. We justify this departure from scholarly
conventions on the ground that these essays provide a rare insight into the
principles and methodologies employed by practicing constitutional adjudic-
ators. On that basis, citations have been kept to the minimum required to
enable readers to follow up on cited cases and authorities.
doi: 10.1 093ficon/moiO33
© Oxford University Press and New York University School of Law 2005, 543
I-CON, Volume 3, Number 4, 2005, pp. 543-571
CONSTITUTIONAL COURT JUDGES' ROUNDTABLE
Professor Juan Colombo Campbell

Presiding judge of the Constitutional Court
Chile
Life, reality and the future of the constitutional charters of our time rely on
constitutionaljustice.-Mauro Cappelletti
Constitutional values and principles are a legal patrimony of the human race
that political constitutions must include within their texts.
As a constitutional judge, when I have a case to decide, I typically consult
foreign caselaw and jurisprudential sources, confirming the universality of
the principles supporting constitutional justice.
Consistent with what I have taught for some fifty years, I will focus here
on the issue from the perspective of constitutional procedure, a discipline
that today includes matters common to all constitutional systems, and the
caselaw and jurisprudence supporting them, most especially:
* Constitutional conflicts and means of resolving them;
e Constitutional adjudication;
e Constitutional fair and due process;
e Judicial protection of constitutional supremacy; and
* Interpretation and adaptation of the texts and values contained in constitu-
tions, as expressed in well-founded rulings of the constitutional courts.
1. Globalization in modern constitutionalism

Globalization has had an impact on judicial systems, particularly constitu-
tional systems, giving rise to a need to resolve new conflicts that stem from
the universal application of constitutional supremacy, the integration of
countries, and the full protection of the rights of individuals everywhere.
Old Europe, wise teacher that it is, remains in the legal vanguard, which
has led it to institutionalize the European Union and to establish judicial
mechanisms for resolving its disputes, an exemplary and critical event for
achieving its objectives. Our own American continent is now awakening to
these trends; its national legal systems remain, to a great extent, hermetic-
ally sealed, although international relationships of all types are becoming
increasingly strong and frequent.
We view as extraordinary the links established in recent years among
the constitutional courts of the world. These courts, operating in the context
of a new dimension of justice, governed by principles distinct from those
of ordinary courts, are able to benefit from exchanges of experience with
their counterparts. Since constitutions contain certain basic fundamental
elements, this allows constitutional adjudicators to make use of comparative
caselaw and jurisprudence based on the rulings of the courts that each
constitutional regime has established. One may also note that constitutional
conflicts, whether they arise between branches of government or as a result
of a violation of the constitutional guarantees of individuals, are essentially
similar in all countries.
Obviously, the creation, through treaties, of international or supranational
courts has also influenced the conduct of adjudication by national courts in
the countries that have accepted their jurisdiction, since those countries
have altered their internal judicial systems to reflect the sharing of sovereign
jurisdiction.
Given these various circumstances, we may reasonably conclude that
constitutional justice is being integrated with the process of globalization.
2. Constitution and constitutional justice

Classic constitutional law is strengthened by the effective protection mechan-
isms provided by constitutional procedural law. The texts of modern con-
stitutions establish the foundations of the normative legal system, which is
then given effect by the incorporation of a judicial mechanism to protect its
provisions.
It is by means of fundamental charters that civilized nations guarantee
the rights of individuals, regulate relations between individuals and the state,
distribute power among the branches of government, and establish an inte-
grated judicial system to protect and guarantee the legitimacy of the constitu-
tion's provisions and values. Within this framework, adjudication plays a role
of the utmost importance as the means for safeguarding, through due process,
the rule of law and the supremacy of the constitution. In this way we secure
the fundamental principles governing the destiny of each country and
its inhabitants, protecting them from any violation of standards or abuse of
power.
It is for that reason that the chairman of this panel, Louis Favoreu, in
Justicia y Jueces Constitucionales (Revista de Derecho Publico, University of
Chile 1998/1999), pointed to the development of constitutional justice as
the most important public law event of the twentieth century-in the Old
World and perhaps in the entire world. He concludes that one could not
conceive of a modern constitutional system that did not reserve a place
for the constitutional court. This explains why, in Europe, all new constitu-
tions provide for such a court, in addition to a supreme court or a court of
cassation, as exists in some Latin American countries.
Constitutional justice is common to every respected legal system. The
constitution is thus established definitively as a decisoria litis norm, to be
applied directly by the judge in resolving any constitutional dispute. We are
witnessing today the rise of a new legitimacy-constitutional legitimacy.
There is an academic consensus to the effect that any new constitution

must envisage a judicial body to ensure its implementation and compliance
with its rules, with a due process for their enforcement. In this setting,
due process may be characterized as the culmination of juridical protection of
the constitution, since if we were to consider constitutional adjudication only
in the abstract, without attention to its application to specific cases, we would
be facing an impossible, incomplete, and ineffectual system of constitutional
justice. Adjudication and due process are indissolubly united concepts; one
cannot exist without the other. Adjudication without process is not viable,
and process without adjudication is not a judicial process, and thus not
capable of resolving a constitutional conflict with res judicata effect.
Juridical protection of constitutional provisions through due process
thus constitutes the mechanism that re-establishes the legitimacy of these
provisions in the event that they are violated. The judgment that resolves
the conflict is the only means by which to restore full effect to the constitu-
tional norm whose violation gave rise to the conflict. It is here, then, that
the concept of the constitutional court as guardian of the constitution
emerges-the masterful creation envisioned by Kelsen that is intended to
ensure constitutional supremacy through due process. As Calamandrei has
said so well, all constitutional declarations are futile without legal procedures
to guarantee their efficacy.
3. Extending the scope of jurisdiction to protect

constitutional supremacy
After the French Revolution and the establishment of the principle of separa-
tion of powers, the judiciary was prohibited from becoming involved in the
legislative and administrative spheres. As a result, it lacked competence to
resolve constitutional conflicts.
Since that time, the world has witnessed various differences among the
branches of government, which must be resolved by rational and peaceful
means. The conflict between the need for judicial oversight of the constitution
and the principle of the separation of powers was precisely what motivated
the creation of constitutional courts. These courts were given the specific
mandate of ensuring the constitutionality of laws, which they could not
have exercised in the traditional judicial structure, which had as its mission
the precise unquestioning application of the law. This oversight of constitu-
tionality then was extended to administrative acts and, according to some,
should also have included the possibility of invalidating the rulings of the
ordinary courts on grounds of unconstitutionality.
It is in this context that the essential difference between common and civil
law jurisdictions arises. The former applies a law that is distinctly national,
while the latter applies a constitution consisting largely of universal elements.
The latter area points directly to the heart of the topic of our gathering
since, in practice, constitutions establish juridical guarantees of their own
supremacy-a position now universally accepted and recognized by most of
the world's political charters. Their protection, through adjudication, is an
essential element for ensuring their efficacy. This perspective has therefore
occasioned the creation of constitutional procedural law.
Nevertheless, I would reiterate that it is clearly not sufficient merely to
stipulate that constitutional rules are preeminent within a state's legal system
for them to be respected by the authorities, thus curbing the latter's power
and providing an effective safeguard of human rights. There always remains
the possibility that the institutions in which power is vested will exceed the
provisions of the charter and, having overstepped their authority, will endan-
ger the institutional foundations of the republic. This being the case, provision
must be made for the protection of the written provisions of the constitution
and, especially, of the fundamental values on which they are based and to
which a judicial ruling must give full effect.
In that context, let us recall Cappelletti, who states that a constitution
should not be conceived of as a mere political, moral, or philosophical guide-
line but, rather, as a positive and binding law, supreme in nature, and more
permanent than ordinary positive law.
In a similar vein, Garcia de Enterria maintains that, currently, constitu-
tions are effective legal rules that hold sway over the political process and
the country's social and economic life and sustain the validity of the entire
legal structure.
Moreover, protecting constitutionality implies developing a specific adju-
dication mechanism, spelled out in the constitution, which must be entrusted
to persons who are not involved in drafting the laws and must be generally
applicable to duly enacted laws that are in full effect. This mechanism is
formally articulated as a guarantee of the constitution's primacy over other
norms.
Constitutional adjudication, therefore, is fundamental to the achievement
of the constitutional rule of law, the allocation and balance of governmental
authority, the distinction between the power reserved to the people and the
powers relegated to the government, the vertical division of the state's power,
and respect for fundamental rights. In addition, this expansive conception of
the mandate of the constitutional courts enables them to perform the essen-
tial function of adapting the constitution and its supplemental texts to actual
national circumstances. This is especially important in cases where rigidity
would create problems in the application of the constitution's rules or change
the essence of its guarantees.
To fulfill their noble mission, the constitutional courts must have the
authority to resolve inherently contentious conflicts and to intervene,
through "adjudication of certainty," in the precautionary oversight of laws.
Case by case, their adjudications guarantee the principle of constitutional

supremacy and succeed in making individual rights truly effective.
A feature of this specialized jurisdiction is that the constitutional court
is responsible both for making binding interpretations of constitutional
precepts and for defining its own functions. As the former president of the
Spanish Constitutional Court, the late Francisco Tomds y Valiente, observed:
"No one can tell the Court what its limits are, which is not to say that it does
not have them, but rather that they are what the constitution says they are,
in accordance with the meaning established by the Court itself as supreme
interpreter."
4. The political ingredient of the constitutional process

Constitutional courts have juridical authority. However, it is impossible to
deny the existence of a political ingredient in conflict resolution. This does
not derive, as is sometimes claimed, from the nature of the bodies that appoint
the members of the constitutional court or imbue it with authority but,
rather, from the concept of constitutional justice and the functions the court
assumes when operating in its own sphere of authority. In effect, the consti-
tutional court's mandate is to defend a concrete and specific constitutional
structure, as articulated in the constitution, which is also specific, and
current, and which, in fact, is called the political constitution.
A constitution is, therefore, a law with an undeniable political meaning,
reflecting the principles and values with which specific political forces
have imbued its text. These forces are those that, through the people, have
formed the constituent power at a specific point in history, and have shaped
the constitution. More precisely, a constitution is a normative act of a
particularly political nature. Hence, the inevitable connection of all con-
stitutional courts to specific constitutional principles and values, the primacy
of which they must guarantee; otherwise their function would make
no sense.
As early as 1977, Sergio Cotta highlighted the legal and political task of
constitutional judges in terms of political protection for freedom, property,
and guardianship of material goods. But over and beyond this, the idea that
oversight of the constitutionality of laws ceases to be a judicial function and
becomes a political function, and that the constitutional court thereby
becomes politicized, has been discarded, for example, in the notable instance
of the French Conseil Constitutionnel, which was created by the body politic
for the sole purpose of monitoring Parliament, with an exclusively political
composition and exercising an a priori control that corresponds to that of
political institutions. Since this body has celebrated its thirtieth anniversary,
its judicial function is no longer disputed. In the end, what is political is the
controversy, not the court that resolves it.
5. Constitutional fair and due process

Every political constitution must treat constitutional due process as the
natural and rational means governing the juridical resolution of conflicts
that arise from the exercise of public functions or from acts or events that
violate fundamental individual rights. In recent years, a new vision of the
concept of constitutional due process has sprung up, imposing new require-
ments, which, if fulfilled, would also allow it to be classified as fair, a perspec-
tive extensively developed in specialized caselaw.
In Spain, the Constitutional Court, within the scope of its protection of
rights as envisaged in Article 24 of the Constitution, has ruled repeatedly
that the Constitution's guarantees include the right to a fair trial and has
identified the features that must be present in order for it to be called fair.
This requires the incorporation of additional philosophical and subjective
values into the process.
I would reiterate that the injection into constitutional justice of a value-
related aspect enriches the traditional concept and optimizes its use in conflict
resolution. If the process is not due process, it will be defective and may be
invalidated by means of procedural annulment. By contrast, if it is unfair,
its correction will be contingent upon whether or not there is recourse to a
remedy for the damage caused by that situation. This is especially important
in light of the fact that constitutional processes, as a general rule, by their
very nature, are not subject to appeal or to disciplinary oversight.
The goal, which we struggle continually to achieve, is a constitutional
process that may be classified as both due and fair. Only thus can constitu-
tional adjudication fully achieve its objective of giving effect to the constitu-
tional supremacy that is universally accepted as fundamental to the entire
political structure.
I agree completely with the statement by Professor Elio Fazzalari, of the
University of Rome, who, in his classic work, Processo e Jiuridizione (Process
and Jurisdiction), states that the dogmatic and ideological construction of
constitutional fair process must be achieved. Accordingly, every process
must be due and, depending on subjective factors and the actions of the judge,
may also come to be fair.
An impartial judge, who is prepared and responsible; a procedure that
offers guarantees of bilateralism; a reasonable timeframe; an appropriate
and responsible interpretation of the decisoria litis rules; a certain degree of
discretion granted to the court; a ruling based on well-founded reasoning;
the certainty of the judgment's timely fulfillment-all these are key elements
in the development of any constitutional process and will shape it subjectively
on a case-by-case basis. A new way of looking at the process would corre-
spond to the nomenclature of fair process, which must result in a sound
and well-founded resolution of the constitutional conflict.
The requirement of due process is permanent and applies to any situation

in which a court must decide a conflict within the ambit of its judicial compe-
tence. By contrast, the principles that guide the formulation of fair process
must be examined one by one and attain particular relevance with respect
to constitutional matters.
Due and fair process is without a doubt one of the most significant develop-
ments in constitutional justice today; it is the means the constitution itself
provides for resolving conflicts. In conclusion, I would say that adjudication
without due and fair process is only an ideal of justice-an illusion.
doi: 10.1 093AcordmoiO34
Olivier Dutheillet de Lamothe

Member, Conseil constitutionnel
France
The Conseil constitutionnel has not witnessed the sort of major theoretical
debates on comparative constitutional law as have taken place in the United
States Supreme Court, for example.
Comparative constitutional law has developed in the Conseil constitutionnel
along the following lines:
" It is a practice that is not imposed by law. In contrast to other constitutional
courts, such as that of South Africa, the Conseil is not required by any law
to refer to comparative law in its decisions;
" It is more developed in the Conseil constitutionnel than in other high courts.
Although every high court-be it the Cour de Cassation or the Conseil
d'Etat-develops relationships with its counterparts, comparative law has
assumed a special importance in the Conseil constitutionnel because the
latter is a young institution, having been created in 1958, and because
constitutional litigation has developed lately as a new discipline in all
countries, particularly in young democracies.
Comparative constitutional law has developed in two forms that must be
distinguished from one another-imposed comparative constitutionalism
and spontaneous comparative constitutionalism. I shall consider each
form in turn before saying a few words about the practice of comparative
constitutionalism before the Conseil constitutionnel.
1. Imposed comparative constitutionalism

Under this heading, I shall consider cases in which the Conseil constitutionnel
is required to refer to the jurisprudence of a foreign court or to a foreign law
imposed on it either directly or indirectly.
1.1. The European Court of Human Rights

The Conseil constitutionnel does not apply directly the norms of the European
Convention on Human Rights due to a binding decision, issued in 1975,
in which it held that, despite the principle of primacy of treaties established
by Article 55 of the French Constitution, it was not within the Conseil's
competence to review legislation for compliance with France's commitments
under international agreements. However, the Conseil is indirectly obliged to
apply the precedents of the European Court of Human Rights (ECHR) for two
reasons:
* To avoid differing from the ECHR, which could result in that Court's
censure of a law that the Conseil constitutionnel had held to be constitu-
tional. This has occurred at least once-in 1999, in the case of Zielinski,
Pradal, Gonzales and others vs. France, concerning methodologies adopted
by social security bodies for calculating annual allowances.
" To avoid contradicting the established precedents of the Cour de Cassation
and the Conseil d'Etat, which apply directly the norms of the European
Convention on Human Rights and the established precedents of the Court
of Strasbourg.
Thus, the Conseil constitutionnel is increasingly required to base decisions
on the established precedents of the ECHR. This has various implications.
" First, the ECHR has contributed to the emergence of new rights. The new
rights inferred by the Conseil constitutionnel from the general provisions of
the Constitution often correspond to those recognized by the ECHR. For
example, there is the right to privacy (guaranteed by Article 8 of the
European Convention and inferred by the Conseil constitutionnel from the
Declaration of 1789); freedom of marriage (guaranteed by Article 12 of
the Convention and inferred by the Conseil from the Declaration); the
right to lead a "normal family life" (inferred from the preamble of the
Constitution of 1946 by reference to the decisions by the ECHR); and
the principle of the dignity of the human person (which the Conseil
recognized as a constitutional principle in 1994, inspired by decisions of
the ECHR).
" Second, previous decisions by the Strasbourg courts have added noticeable
substance to the French conceptions of certain rights. Freedom of speech-
"one of mankind's most precious rights", to recall the phrase used in the
Declaration of 1789- is a good example. Freedom of speech in our modern
information societies is no longer merely a matter of prohibiting censor-
ship. It also involves access to multiple sources of information-an idea
clearly expressed in decisions by the Strasbourg court and now fully incor-
porated in the case law of the Conseil constitutionnel.
" Third, key decisions by the Strasbourg courts have had a major impact on
judicial procedure, especially criminal procedure. The Conseil constitutionnel
now frequently refers to the need for a "fair and equitable procedure
guaranteeing equal rights for all parties" (which is derived directly from the
right to a fair trial guaranteed by Article 6 of the Convention) and to the
resulting need for an equal playing field among the parties. The Council
has also been required to recognize a "right to effective judicial appeal"
(the basis of which was found in Article 16 of the Declaration of Human
and Citizens' Rights of 1789, referring to the right to a fair trial).
9 Last, in at least one area, previous decisions by the Strasbourg court have
led the Conseil constitutionnel to modify its own established precedent in
matters involving validating statutes. Following the censure in the Zielinski
case of a law that it had found to be constitutional, the Conseil constitution-
nel modified its holding. It based its decision explicitly on the principle of
separation of powers so as to employ, like the European Court of Human
Rights, a balancing test between the public interest that was raised as
grounds to justify a validating statute, and the consequences of a violation
of the defendant's right to appeal.
1.2. Community law

The issue is exactly the same as for the European Convention on Human
Rights: given the IVG decision of 1975, the Conseil constitutionnel does not
enforce the Treaty of Rome directly, nor the law of the European Community
that derives from it. But it is required to enforce EC law indirectly for the same
reasons as it enforces the Convention: to avoid violating France's commit-
ments as a member of the EC; and to avoid contradicting the Conseil d'Etat
or the Cour de Cassation, which enforce EC law directly. In this way, EC law,
and through it, the laws of the fifteen Member States, are exerting a growing
influence on the positions adopted by the Conseil constitutionnel. Three recent
examples are cited below:
In an August 2003 ruling on the pension reform act, the Conseil constitu-
tionnel found that a provision-which afforded women who were insured
under the social security system an increase in insurance benefits if they
were raising a child-was constitutional. It referred to a 1978 Directive of the
Council on the European Communities on gradual implementation of the
principle of equal treatment of men and women in matters of social security,
which explicitly provides the possibility for member states to retain in their
laws this kind of discriminatory benefit for workers in the private sector.
In a December 2003 decision on legislative reforms concerning the right to
asylum, the Conseil constitutionnel, in order to find the new law constitutional,
took into account a draft EC directive on the subject, which itself reflects the
law of the different member states. In so doing it accepted the introduction
into French law of three notions that are completely new in our system of
law, i.e., that of non-state-related persecutions to which refugees may be
subjected, the concept of a list of countries of safe origin, and the concept of
internal asylum.
Last, in a November 2003 decision on the immigration control law, foreign

residents in France, and nationality, the Conseil constitutionnel, in order to
assess the law's constitutionality, had to take into account the legislation
in the other member states, especially with regard to administrative
detention deadlines.
2. Spontaneous comparative constitutionalism

This applies to cases in which the Conseil constitutionnel derives its decisions,
without explicitly saying so, on previous decisions by other constitutional
courts. This influence is undoubtedly not apparent because in actual practice,
the Conseil constitutionnelmakes no specific reference to foreign jurisprudence.
Nevertheless, there is a real influence, both on the substance and on judicial
practice.
2.1. With respect to substance, three examples are given below

The first pertains to voluntary termination of pregnancy. All Constitutional
Courts have been faced with changing legislation on the abortion issue-in
the 1970s and again recently. On this social issue, they have all referred to
foreign practices. This is what the French Conseil constitutionnel did in its
June 2001 decision on the subject.
Initially, the constitutional courts were divided among three camps:
* Those that highlighted the principle of the free choice of the mother, as did
the United States Supreme Court in Roe v. Wade (1973), which makes a
legal distinction among three phases of pregnancy. According to Roe, the
right of the mother takes precedence over the public interest during the first
three months of pregnancy. The interest of the State becomes compelling in
the last trimester, as the fetus becomes viable.
" Those that, to the contrary, placed greater emphasis on the principle of pro-
tection of the human being as soon as life begins, as is true of the German
Constitutional Court, whose 1975 ruling renders void a law allowing abor-
tion in the first twelve weeks of pregnancy, on that grounds that it violates
the right to life established in Article 2, paragraph 2 of the Basic Law.
* Last, those courts that avoid issuing any decisions on the scope of the
principle of respect for the beginning of human life. This is the case of
France and Italy, insofar as their constitutions do not include any explicit
norm guaranteeing the right to life. This is also true of the ECHR, which
has taken care to avoid defining concretely the scope of application of
Article 2 of the European Convention, which guarantees the right to life
of all persons, as ruled in the case of Open Door and Dublin Well Woman v.
Ireland (1992).
It is also worth noting that twenty years later, the polar opposite positions
adopted by the U.S. Supreme Court on the one hand and the Karlsruhe Court
on the other have tended to converge: The German Court issued a ruling in
1993 that affords more room for the free will of the mother, in that it accepts
the principle of decriminalizing abortion during the first twelve weeks of preg-
nancy. For its part, the U.S. Court in 1992 held that the states could be
granted a greater right to intervene in the regulation of abortion, without
violating the Constitution. It rejected the trimester approach articulated
in Roe v. Wade (19 73), giving back to the States the power to determine the
conditions for terminating a pregnancy prior to the viability of the fetus.
A second example is found in the recognition by the Conseil constitutionnel
of the guarantee of independence of university professors. To establish this
independence as a fundamental principle recognized by the laws of the
Republic, the Conseil constitutionnel based its 1984 decision directly on prior
decisions of the German Constitutional Court, which inferred from Article 5
of the Basic Law the freedom of university faculty and the institutional
autonomy of universities (19 73).
A final example can be drawn from recent events in the news. When an
appeal was lodged against the 2004 Finance Act, the Conseil constitutionnel
was required for the first time to settle the issue of whether or not the principle
of equality-which requires similarly situated people to be treated in the same
way-also implies the opposite, i.e., that people in different situations should
be treated differently. Before giving a negative response to this question,
which has fascinated legal scholars and Kelsen in particular, the Conseil con-
stitutionnel referred to positions taken by other high courts. The European
Communities Court of Justice, the German Constitutional Court and the
Spanish Constitutional Court had held that under the principle of equality,
different situations must not be treated equally; the Supreme Court of
the United States and the Italian Constitutional Court find that material
differences could justify different legal treatment, but did not require it.
2.2. In terms of judicial practice, two examples are cited below

The first is the practice of reservation of interpretation. This device is doubt-
less part and parcel of any judicial review of constitutionality that cannot
allow itself to be limited to a choice between censuring the law or dismissing
the case. It is quite revealing that the interpretation reservations first
appeared with the second decision issued by the Conseil constitutionnel, on
the conformity of norms (decision of June 17, 18 and 24, 1959 on the regula-
tions of the National Assembly). From the standpoint of legal theory, the
Conseil constitutionnel apparently found in prior decisions of the Italian and
German Constitutional Courts the inspiration to develop this practice (for
more on this point, see Alexandre Viala's work, Les reserves d'interpritation
dans la jurisprudence du Conseil constitutionnel (1999)).
The second example can be drawn from Italian legal theory regarding
the "living law." According to this doctrine, established in the jurisprudence
of the Italian Constitutional Court, when there is a prevailing consolidated

interpretation of a legal provision under review, the Court adopts this "living"
interpretation and abandons the notion of interpreting the provision indepen-
dently. Accordingly, the Constitutional Court considers the application of the
law under review and, more precisely, the meaning acquired by such law
when enforced. Although it is linked structurally to the type of ex post review
conducted by the Italian Constitutional Court and cannot be directly trans-
posed to the Conseil constitutionnel, which conducts its review beforehand,
this theory is nonetheless exerting a growing influence on the Conseil, which
is concerned with establishing a harmonious working relationship with the
other high courts. A January 2002 decision on the social modernization act
is a good example. To disallow the act's new definition of economic layoffs,
the Conseil constitutionnel cited three points on which the definition deviated
significantly not only from the previous definition but from the established
precedents of the Cour de Cassation and concluded that, in enacting these
provisions aimed at protecting the maintenance of employment, lawmakers
had disproportionately violated the freedom to do business.
3. The practice of comparative constitutionalism

For the time being, the Conseil constitutionnel, even when it derives its inspira-
tion from the decisions of foreign courts, does not refer to them explicitly in its
decisions. However, references to other legal precedents and foreign law are
appearing increasingly in the file prepared for every case and published on
the Conseil's website.
However, one cannot rule out the possibility of a change in the practice of
the Conseil constitutionnel, judging by recent trends in the practice of the
Conseil d'Etat. In an order dated October 29, 2003, the Conseil d'Etat, when
petitioned for the suspension of a decree transposing a European directive
relating to the labeling of food products, for the first time in its history, to
order the suspension of the decree, expressly referred to the decision rendered
by the United Kingdom High Court of Justice on the same matter; that Court
had referred a question on the validity of the directive to the European Court
of Justice.
Insofar as it refers more and more systematically to decisions by foreign
courts, the Conseil constitutionnel has the necessary documentary bases. It
also has the database of constitutional decisions developed by the Venice
Commission, known as CODICES, which is based on the use of a common
thesaurus and common rules for indexing decisions and constitutions, and
covers all the member countries of the Venice Commission and associates as
well as the members of the Association of Constitutional Courts sharing the
use of the French language (ACCPUF). The Documentation Department also
refers systematically to the websites of the constitutional courts and research
centers and analyzes foreign constitutional law reviews.
The Conseil exchanges its law reports with some fifty constitutional courts,
including all the Courts of the European Union, and the Supreme Courts of the
United States, Argentina, South Korea, Algeria, and others.
Comparative constitutionalism is resulting in highly intense international
cooperation with a large number of Constitutional Courts. This cooperation is
twofold.
Multilateral cooperation among Constitutional Court associations:
Three agencies play a major role in this regard-ACCPUF, which now
includes forty-one Courts or Councils, for which the French Conseil constitu-
tionnel acts as secretary; the Association of European Constitutional Courts;
and the European Commission for Democracy through Law, known as the
Venice Commission, which operates as part of the Council of Europe.
Bilateral exchanges with the different Constitutional Courts: These
involve two-to-three-day tours of Constitutional Courts in France or tours
abroad by members of the Conseil constitutionnel. These exchanges have
increased considerably in the past few years, especially with the young
democracies of Eastern Europe.
In a brilliant essay entitled Race and History,published in 19 52, ethnologist

Claude Lvi-Strauss demonstrated that cultures and civilizations progress only
through confrontation with other cultures and other civilizations, regardless
of the forms of such confrontation-wars, migrations, trade, cultural
exchange. When they withdraw into themselves, they die and disappear, as
happened with Athens and the Roman Empire.
This theory also applies to legal cultures. I am profoundly convinced that
each of our legal cultures (Roman-Germanic law in the case of France)
will only progress through encounters with other legal cultures, such as, for
example, the common law culture. Hence the importance of exchanges
such as this Congress exemplifies.
doi: 10.O 0931icon/moiO35
Wolfgang Hoffmann-Riem
Justice, Bundesverfassungsgericht (Constitutional Court)
Germany
In the following I will deal with the benefits and risks of using comparative
arguments in legal reasoning from the perspective of applying a constitution.
However, I will not address the question from the standpoint of making or
amending a constitution.
The application of norms is a process that involves both interpretation and

the use of law to solve a specific social problem. Therefore the comparative
argument may relate not only to the written norm and its interpretation
but also to the understanding of the social problem in question, or to the
search for solutions. It may also relate to the elaboration of a suitable means
of implementation.
Courts, including constitutional courts, are reluctant to use comparative
arguments. This is also true of the European Court of Human Rights in
Strasbourg as well as the European Court of Justice in Luxembourg. Such
reluctance may be due in part to a lack of time and resources, or even ignor-
ance, but it stems primarily from the inherent difficulties of using comparative
arguments.
The starting point of any interpretation of a constitution must be the
recognition that it is a statute that differs from other statutes by virtue of
being more political, more open-ended, less complete, and less consistent.
Constitutional provisions very often concern fields where various interests
clash and political controversies arise. Therefore, it is important to attempt
to ensure that the interpretation and the application of the norm are accepta-
ble not only to the parties to a dispute, but also to the general public, to
political and economic actors, to lawyers, and to the scholarly community.
It must also be taken into account that the interpretation and application of
constitutional norms usually have an impact not only on the problem in
question but also on the solution of similar or related problems. Another chal-
lenge is to find an interpretation that does not preclude future modification to
address new problems or problems whose old solutions no longer fit.
The interpretation of norms usually leaves room for more than one
answer. This is especially true of constitutional norms, due to their open-
endedness and vagueness. Constitutional adjudication inevitably comprises
a mixture of cognitive and voluntary elements. This statement is relevant to
the interpretation of constitutional law by the courts as well as by parliament
or other actors. The question whether a constitutional court is allowed to use
both elements in a broad or a narrow way depends on the scope of judicial
review. According to German constitutional law, the Constitutional Court
decides its own proper judicial role-including the question of judicial self-
restraint. In matters of constitutional law the Court is not in principle
prevented from using both the cognitive and the voluntary elements, but it
must respect the limits of judicial power, especially as regards the power of
parliament when the latter implements the Constitution by its statutes.
The success of constitutions lies in their ability to achieve a balance
between maintaining continuity and being susceptible to adaptation to
changing circumstances, to new empirical and normative facts, to a change
in the distribution of political power, or to new social, economic or cultural
challenges that society faces. Nowadays, the possibility of finding answers
to challenges of this type-such as those related to the consequences of
migration flows, the development of biotechnology, or changes in the global

economy-depends very often on the ability of the constitution, and of its
application, to accommodate innovative solutions.
Another present-day challenge is the shift of power formerly held by the
state to other stakeholders, including such actors as non-governmental
organizations (NGOs). There is also a shift of power to worldwide business
conglomerates, which build their own non-governmental legal orders, and
to new hybrid actors such as ICANN (the Internet Corporation for Assigned
Names and Numbers), a privately organized but partly government-
supported organization that administers domains on the internet. Other
important new actors include intergovernmental organizations such as the
World Trade Organization (WTO). The scope of a national constitution
is limited to the boundary of that state. The activities of transnational and
international actors reach further but may also have consequences within
the nation state.
Neither an international constitutional order nor an international actor
has yet emerged that is comparable to the government of a nation state. Inter-
national law is not yet sufficient to deal with all problems created by the
transnational and international actors and activities. This means that indivi-
dual states and societies and their legal orders must react on an individual
basis to the process of globalization. This can lead to new questions as far
as the meaning of the constitution (and other norms), the functioning of a
legal order, and the ability of that legal order to solve social problems are
concerned.
Comparative studies may help to illustrate that the legal orders of different
states are less different in substance than on their surface. To find differences
does not necessarily indicate a deficiency of any of the orders concerned.
Differences of legal solutions can be proof of the plurality of legal options;
they can be kept as a pool of alternatives and as a source for creating new
solutions which can help to cope with current or future problems. A competi-
tion among legal orders and potential solutions can serve as an important
engine of democracy and of innovation.
But there is no guarantee that creativity and legal imagination alone will
be sufficient to find new and adequate solutions that will be accepted and
successfully implemented. Applying a norm is not an act of revolution. New
ideas must be adapted to traditional solutions and to their foundation in the
legal order and in the identity of the society.
One must keep in mind also that applying the constitution is not the same
as writing a law book or devising a new theory of law. Of special importance
are the conditions for acceptance and compliance. Constitutional problems
are usually tied to a society's particular history and culture: A constitution
is a nation's autobiography. It may reflect ideological commitments. In fact,
the ideological foundation of law itself is not a distortion of law. In applying
a constitution one must take into account its empirical and prescriptive
premises (economic, political, religious or social). If there is a disparity

between the constitution and the cultural and social identity of the society,
there is a high risk of non-compliance with, and non-implementation of, judi-
cial decisions, which may result in a purely symbolic use of constitutional
law. This may have some benefits (affirmation of values, stabilization of an
order), but purely symbolic uses of norms usually are not sufficient to solve
problems. The principle of effectiveness of norms is a value in itself.
In order to interpret and apply constitutional norms in a meaningful way,
it is therefore important to take into account empirical facts, historical experi-
ences, prevailing paradigms, and the distribution of societal and political
powers. What does this mean for comparative analysis? The main task con-
fronting those who want to learn from foreign constitutions is to evaluate
properly their similarities and differences. To do this successfully, they must
be careful not to misunderstand foreign law due to biases shaped by their
own legal order. They should try to reconstruct the presuppositions, ideologi-
cal commitments, and empirical conditions of the foreign constitutional order
and ask whether and how far these are in accord with those of their own
constitutional order.
When comparing different legal orders and norms one usually discovers
that there is no successful transplantation of legal solutions without transfor-
mation and adaptation. The comparative argument is not convincing in itself,
but it may help to identify errors and to sharpen the analysis. In particular, it
may support the strength of an argument.
A comparative argument can broaden the view. The internationalization
of politics and economy as well as cultural exchange seem to lead to more
knowledge about foreign societies, including their legal orders. The growing
exchange of students acquaints them with different legal orders and suggests
a future in which the citation of foreign decisions will no longer be hindered
by a lack of knowledge of them. On the other hand, learning from other legal
orders does not shift responsibility for the appropriateness of a solution to a
foreign legal system; legal solutions must be rooted in the legal order in which
they are applied. But in the future there may be a broader range for the use of
comparative arguments in an increasingly globalized legal order.
There are not many examples of explicit citations to foreign constitutional
decisions in the collected decisions of the German Constitutional Court, but
one can identify the influence of other courts nonetheless. This is especially
true of the United States Supreme Court and its use of constitutional law
which has partly been a model for shaping the German constitution and
applying it. The famous Marbury v. Madison (1803) decision, for instance,
has been influential in introducing judicial review in matters of constitutional
law. In addition, the powers of the German Constitutional Court have been
partly modeled on those of the U.S. Supreme Court. The New York Times
v. Sullivan (1964) decision has likewise been a model for the Court's interpre-
tation of the freedom of communication in the field of political speech. Red Lion
BroadcastingCo. v. FCC (1969) and its fairness doctrine have influenced the
shaping and interpretation of German broadcasting law and are still influen-
tial, even though the United States has abolished the fairness doctrine. Brown
v. Board of Education (1954) has given impetus to developments in the field of
equal opportunities and has vitalized the discussion on affirmative action. In
German constitutional law, fundamental rights are thought of not only as
individual rights against state action but also as an objective order of funda-
mental values, indirectly affecting civil law and the legal relations between
private parties. There are situations where the government has an affirmative
duty to act in order to ensure that private parties adhere to these values.
Even judicial dissents may refer to foreign decisions. An example is the
famous German Mephisto libel case (1971), in which Justice Rupp-v
Briinneck quoted New York Times v. Sullivan in her dissenting opinion.
European courts and their decisions are also being taken into account by
the German Constitutional Court. In its recent Schaechten decision (2002),
the German Constitutional Court quoted a 1998 decision of the Austrian
Constitutional Court referring to the slaughter of cattle in accordance with
Muslim and Jewish rituals.
There is also scope for using comparative arguments in the field of
European law. European Community law, which is constitutional law in sub-
stance though not in form, has to some extent been patterned after various
national legal orders. Legal solutions from one or more countries have been
introduced into European Community law and thus have become binding
on all member states. The application of European Community law can be
enriched by taking into account the different types of experience of the law-
yers and judges or administrators involved. When dealing with European
Community law, it is quite possible that they will find solutions by drawing
on their national backgrounds and the legal experience acquired in their
own societies. The proper application of European law may be enhanced
by the awareness of different legal solutions and by the ability of lawyers to
compare them in a meaningful and responsible way.
doi:l O. 1093/icon/moi036
N. Santosh Hegde
Justice, Supreme Court*
India
1. Introduction
The past fifty years have been an extraordinary period for constitutionalism
throughout the world. The triumph of democracy in India and the
* Retired June 16, 2005. Grateful thanks to Suman Reddy and Sinoj Koshy for the assistance rendered.
survival of its constitution for fifty years are significant achievements. The
continuing success of constitutionalism in India has far-reaching implications
for the future of international peace and security-particularly in Asia,
a region that has faced many challenges to democracy. However, scholars,
lawyers, and judges in the developed world often ignore the potential benefits
of an inquiry into the constitutional processes of developing countries.
In drafting its constitution, India deliberately incorporated quintessential
aspects of United States constitutionalism, among them the concept of a
written constitution, court-policed constitutional liberties, and constitutional
supremacy enforced by the courts. In the sphere of human rights, the impact
of the U.S. Constitution on that of India was "massive" and the "borrowings
direct," as Columbia University law professor Andrzej Rapaczynski would
have it. To the extent that India's founding fathers eagerly emulated the
American judicial institution and its constitutional function in their efforts
to build a free and fair society, India is a constitutional offspring of the United
States. As one of them-the venerable Bhimrao Ramji Ambedkar-remarked,
"in support of every exception to the fundamental rights set out in the
draft Constitution, one can refer to at least one judgment of the U.S. Supreme
Court."
The first president of India's constituent assembly, Rajindra Prasad, invited
its members to study carefully the provisions of the U.S. Constitution, "not
necessarily for wholesale adoption but for the judicious adaptation of its pro-
visions to the necessities and requirements of your own country with such
modifications as may be necessary owing to the peculiar conditions of India's
social, political and economic life." While the framers drew liberally upon the
constitutions of various nations, the U.S. undoubtedly provided the principal
model.
One provision of the American Constitution that is conspicuous by its
absence from the Indian offspring is the due process clause. The framers
feared that a guarantee of due process-requiring that property be expro-
priated only for specific public use and only if justly compensated-in the
hands of a conservative judiciary, could turn the protection of property rights
into an obstacle to the vigorous pursuit of social justice in independent India.
Hence it was decided that the word "property" would be dropped, and a con-
stitutional safeguard would apply only to life and liberty. There were those
who also vehemently opposed the latter protections, arguing that they would
obstruct the adoption of preventive detention laws. In the wake of Mahatma
Gandhi's assassination, the fear of communal riots and excesses by anti-social
elements led the framers to reserve that option within the legislature's
powers. The due process clause was dropped in favor of the provision that
remains in effect even today: "No person shall be deprived of life or personal
liberty except according to procedure established by law."
Although the framers were not in the least ashamed of their "borrowed"
constitution, the Indian judiciary was at first reluctant to rely on precedents
from foreign jurisdictions. Over time, however, the judiciary realized that
reference to such precedents was unavoidable when interpreting such
provisions of the Indian Constitution as the chapter on fundamental rights
(inspired by the U.S. Constitution); the federal form (based mostly on the
Canadian Constitution Act); or the principles of responsible government
(borrowed from the British system).
2. Specific contributions to Indian law from the

principles of other constitutions
It is when interpreting the fundamental rights enshrined in Part HI of the
Indian Constitution-in particular Articles 14, 19 and 21-that the Indian
Supreme Court relies most heavily on foreign decisions. In interpreting
Article 14, on "equal protection of the laws," the Court has resorted liberally
to American judgments to import the concept of "reasonable classification."
In Article 19, the Indian Constitution has enshrined the American principle
of judicial overview of legislative and executive action; from this flows a
plethora of Indian decisions that rely on U.S. precedents to assess the reason-
ableness of restrictions imposed on fundamental rights, thus bringing the
concept of due process into Indian jurisprudence after all.
2.1. Article 14
Article 14 of the Indian Constitution combines the English doctrine of the rule
of law with the American equal protection clause, albeit with a much broader
sweep than is envisaged by either of those concepts. As understood in the
British system, equality before the law means the subjection of private citizens
as well as government officials to the ordinary law and ordinary courts.
Furthermore, the British principle of equality is conceived against the actions
of the executive alone. India's Article 14 also provides for equality among
citizens and may be invoked in respect of actions of the legislature as well.
The Indian Court has drawn liberally from U.S. constitutional law in its
interpretation of Article 14-holding, for example, that differential treatment
of a class of people may be valid if the classification is reasonable, with reason-
ableness predicated on the existence of a determinate distinction ("intelligible
differential") whose rationale is related to the objectives of the legislation
under scrutiny-the nexus test. This has been held in numerous cases, and
so the constitutional guarantee of equal protection of the laws has come
to assume a position corresponding to the comparable clause in the U.S.
Constitution.
2.2. Article 19
In interpreting the fundamental rights set forth in Article 19-particularly the
freedoms of speech and expression-the Supreme Court has also relied heav-
ily on U.S. judgments. In Romesh Thappar v. State of Madras (1950), one of its
earliest cases, the Court held that "the freedom of speech and expression
includes freedom of propagation of ideas and that is ensured by the freedom
of circulation." In so ruling, it drew support from two American cases-Lovell
v. City of Griffin (1938) and ex parte Jackson (1877)-which held that "liberty
of circulation is as essential to that freedom as liberty of publication. Indeed
without circulation publication would be of little value." The Indian Court
concluded that the Madras government's banning of the circulation of the
petitioner's journal, Cross Roads (which was critical of the policies of the
Nehru government), violated Article 19 of the Constitution.
In the Express Newspapers case (1959), petitioners challenged the constitu-
tional validity of legislation that defined conditions of service for newspaper
journalists, and the legality of the decision of a wage board constituted there-
under. The Supreme Court turned to two U.S. decisions-InterstateCommerce
Comm'n v. Louisville & M.R. (1912) and Opp. Cotton Mills Inc. v. Administration
(1940)-which addressed the procedures for determination of wages. On the
further question of how to distinguish whether the wage board had func-
tioned in a legislative, judicial, or quasi-judicial capacity, the Court referred
to United Kingdom Privy Council cases as well as American and Australian
judgments.
2.3. Article 21
Article 21 of the Indian Constitution has been interpreted by the Supreme
Court so that it has become the cornerstone of the provisions in the chapter
on fundamental rights. Although it contains the words "life" and "liberty,"
these terms have a narrower meaning than in the Fourteenth Amendment
to the U.S. Constitution, as "liberty" is qualified in the Indian text by the
word "personal." Nonetheless, in Kharak Singh v. State of Uttar Pradesh
(1963), where it examined the scope and content of "personal liberty" under
Article 21, the Court drew once again on American jurisprudence when it
declined to sanction the narrow interpretation that nothing more than free-
dom from physical restraint or confinement was envisaged. The Court held
that the term must embrace all rights that comprise personal liberties, other
than those covered in Article 19. To support this conclusion, it cited Munn
v. Illinois (1877), recalling Justice Fields' statement that "life" in the Fifth
and Fourteenth Amendments could not mean merely the continuation of
animal existence but signified a right to the possession of one's own organs.
It further cited Justice Frankfurter's observation in Wolf v. Colorado
(1949)-that arbitrary police intrusions on a person's privacy run counter
to the rights guaranteed by the Fourteenth Amendment-and the recogni-
tion in Boiling v. Sharp (1954) that liberty extends to a broad range of a
conduct that a person must be free to pursue. The Indian Court has further
relied on U.S. judgments in decisions addressing the constitutional rights of
condemned prisoners, the scope of habeas corpus, and the right to pursue a
livelihood.
3. Use of Indian judgments by other courts

There have been fewer citations to Indian precedent in the courts of the
developed nations than in the developing world, particularly in the Common-
wealth. Nations such as Malaysia, Indonesia, Tanzania, and South Africa,
and our Asian neighbors-Pakistan, Sri Lanka and Bangladesh-regularly
refer to Indian judgments.
In Seneviratne and Another v. University Grants Commission and Another
(1980), where the question was one of equality of opportunity in university
admissions, the Sri Lankan Supreme Court discussed as many as twenty
Indian cases that involved Article 14 of the Indian Constitution. At the same
time, it observed that India was different from Sri Lanka or the U.S., in that
India's Constitution contained express provisions classifying certain groups,
which led our courts to be cautious about devising additional categories
that would form the basis for further exceptions to the equality principle.
The decision of the Malaysian Court of Appeal in the groundbreaking case
of Nordin Salleh v. State Legislative Assembly Kelantan (1993) was likewise
inspired to a large extent by Indian jurisprudence, from which it extracted a
Court's duty to consider not only whether state action affected fundamental
rights directly but also whether it had an inevitable effect or consequence
that made their exercise ineffective or illusory. Likewise in Ramli bin Salleh
v. Inspector Yahya bin Hashim (1973), the Malaysian Court held that the right
to legal representation in a criminal case attaches at the time of arrest, expres-
sing the same concerns and safeguards as had been emphasized by Justice
Modi in the Indian case of Moti Bai v. the State (19 54).
However, the Federal Court in Malaysia has also rejected the holding of a
celebrated Indian case--KesavanandaBharati v. State of Kerala (1973)-that
holds that Constitutional amendments by Parliament must not destroy the
basic structure of the Constitution, thereby embracing a prohibition against
legislative abrogation of human rights. The Malaysian Court, in what seemed
to many an abdication of its duty to protect human rights, rejected the Indian
doctrine and accorded Parliament-itself a creature of the Malaysian
Constitution-the right to amend that document however it chose.
Justice Breyer's dissent in the U.S. case of Knight v. Florida (1999) is an
exercise in judicial world traveling that visits India among other foreign jur-
isdictions. Observing that the Court had long considered the way in which
foreign courts applied comparable constitutional standards to be relevant
and informative, Justice Breyer reviewed the jurisprudence of the Indian
Supreme Court in support of his conclusion that imposition of the death pen-
alty on individuals left on death row for twenty years or more would consti-
tute cruel and unusual punishment. Specifically, he relied on Sher Singh v.
State of Punjab (1983), in which the Indian Court held that an appellate court
must take the occurrence of "prolonged delay" into account when deciding
whether to impose the death penalty.
In another case concerning the constitutionality of capital punishment-

Reyes v. the Queen (2002)-the U.K. Privy Council relied on Indian judgments
in which the Supreme Court had reserved the death penalty for exceptionally
depraved and heinous offenses and found unconstitutional a section of
the Indian Penal Code that prescribed a mandatory death sentence for a
particular offense.
The South African Constitutional Court has also relied on Indian jurispru-
dence. For example, in Minister of Health and others v. Treatment Action
Campaign (2002), where the issue concerned injunctive writs against the
state, the Court relied on the Indian case, M.C. Mehta v. State of Tamil Nadu
(1986), remarking the Indian Court's willingness to grant far-reaching reme-
dial orders, although the Indian issue had been child labor rather than AIDS
policy.
In Osmond v. Public Service Board of New South Wales (1984), the question
was whether the common law in Australia had advanced to the point that a
holder of statutory power would be obliged, when exercising that power in
respect of the interests of a person, to comply with that person's demand to
know the reasons for the action. The lower court observed that the Supreme
Court of India had elaborated, in a string of cases, a general requirement
for administrative tribunals to give reasons for their decisions. It further
remarked that the principles of natural justice had received their most
notable support in two decisions of the Indian Court, in which Justice Prafull
N. Bhagwati had framed the requirement that reasons be given for adminis-
trative action as a matter of natural justice, whose soul he referred to as
"fair play in action."
4. Conclusion
In considering whether or not to amend a constitution, comparative studies
are crucial. What is needed is a universal body of constitutional law under
which all of humankind may enjoy the same rights, and be subject to the
same rules. Although the constitutional authority of other countries should
not be blindly followed, it must not be assumed that each cultural system is
so special and so disconnected from the world community that apparent simi-
larities revealed by comparative study must be regarded as insignificant or
illusory. Constitutional language may vary, and the societies in which the
law must operate may be different but, in fundamental matters, it is generally
helpful to have one's thinking illuminated by the opinions of the courts of
other nations, particularly those with a shared legal tradition.
An important innovation in Indian constitutional law that was inspired by
comparative study is public interest litigation. As U.S. Court of Appeals
(Second Circuit) Judge Anthony Calabrese observed in U.S. v. Then (1995),
referring to the German and Italian systems as "constitutional offspring" of
the United States, "wise parents do not hesitate to learn from their children."
Nonetheless, much skepticism has been expressed regarding direct borrowing

of solutions from the jurisprudence of America's offspring. A proponent of this
view would be U.S. Justice Antonin Scalia, who held in Stanford v. Kentucky
(1989) that "it is the American conceptions of decency which are dispositive"
and hence that practices in other nations with respect to execution of
juveniles were irrelevant. This view stems from the belief that the sources of
constitutional interpretation never run out.
A similar impatience with arguments based on foreign law was expressed
by Chief Justice Sir Harry Gibbs when the previously Osmond case, discussed
above, was appealed to the High Court of Australia:
Kirby P referred to a line of Indian decisions in which it has been held to
be 'settled law' that where an authority makes an order in exercise of a
quasi-judicial function, it must record its reasons in support of the order
it makes ... These decisions appear to state the common law in India,
although without a detailed knowledge of the course of decisions in
that country it would be hazardous to assume that they have not
been influenced by the provisions of the Constitution of India or by
Indian statutes ... When the rules of the common law of Australia are
unclear or uncertain assistance may be gained from a consideration of
the decisions of other jurisdictions, but when the rules are clear and
settled, they ought not to be disturbed because the common law of other
countries may have developed in a different context.
Notwithstanding Justice Gibbs's reluctance to accept the Indian perspec-
tive, the editors of Australia's CriminalLaw Journal have urged their nation's
law reform bodies and its judges "to refer to the Indian Penal Code as a possi-
ble model for the reform of substantive criminal law," observing that this
would signal to Australia's Asian neighbors that "in fundamental respects,
our views about justice, right and wrong, crime and punishment are much
the same."
Finally, an important area of Indian jurisprudence from which other
countries can draw inspiration is our social action litigation, which is the
Indian variant of American public interest litigation. The sheer complexity
of social and economic problems in India, coupled with inadequacies in the
other branches of government, has led people increasingly to seek redress
increasingly from the judicial branch. In a series of creative decisions, the
Supreme Court has responded effectively to ensure access to justice to those
who may be unable to approach the Court for relief. For instance, it held in
S. P. Gupta v. Union of India (1982) that any member of the public, provided
they were acting bona fide and not for devious considerations, could maintain
an action on behalf of a person, or a disadvantaged class, claiming legal
injury. This is an area of Indian jurisprudence that could be studied to advan-
tage in many a country.
doi: 10. 1093AconlmoiO37
Luis Lopez Guerra

Former judge, Tribunal Constitutional(Constitutional Court)
Spain
References to the case law of the constitutional courts of other countries and
the European Court of Human Rights (ECtHR) are to be found frequently in
the opinions of the Spanish Constitutional Court. The attention afforded
comparative law is not surprising in view of the fact that the authors of the
Spanish Constitution of 1978 were directly influenced by the constitutions
of other countries. To a certain extent the Spanish Constitution is a showcase
of new constitutional elements inspired in the basic laws of other legal
systems. From the Fundamental Law of Bonn, for example, the Spanish Con-
stitution took the concept of the essential content of fundamental rights, the
constructive no-confidence vote, and the general structure of the Constitu-
tional Court. From the Italian Constitution it adopted the General Council of
the Judiciary, the technique of using framework laws, and the distinction
between regions granted "special" autonomy statutes, and others given
"ordinary" ones. The Swedish constitution provided the concept of the
Ombudsman; and the French Constitution the requirement of a constitutional
amendment prior to ratifying treaties not provided for in the Constitution
itself. And the Mexican Constitution contributed the recurso de amparo, if
only in name. In general terms, the entire section of the Spanish Constitution
concerning the rights of individuals was clearly influenced by European or
American constitutionalism. 1 Thus it is no surprise that when interpreting
the mandates of the Constitution the Spanish Constitutional Court has shown
an interest in previous opinions rendered by other constitutional courts con-
cerning precepts that have been "borrowed" from their respective constitu-
tions, nor is it unusual that the Court should refer to these decisions to
reinforce its own opinions.
The Spanish Constitutional Court's motives for citing the opinions of the
ECtHR are more obvious. Article 10.2 of the Spanish Constitution provides
that constitutional precepts concerning individual rights and freedoms shall
be interpreted in accordance with the treaties on that subject ratified
by Spain. As a consequence, the precepts of the European Convention for
the Protection of Human Rights and Fundamental Freedoms and the
convention-based decisions of the Strasbourg Court, are mandatory refer-
ences for the Spanish Constitutional Court when it applies constitutional
1After returning from the Congress I had the opportunity to read the excellent article of Pierre
Bon, La Constituci6n espafiola en el marco del constitucionalismo contempordneo in 69 REviSTA
EsPAROLA DEDEREcHo CoNsTITUCIoNAL (2003) pp. 13-29, where he outlines the influences of
various European and American constitutions on the Spanish Constitution.
provisions affecting rights and freedoms. In fact, quotes from opinions of the
ECtHR have practically become boilerplate in Constitutional Court
judgments, and in many cases its case law has provided the ratio decidendi
for decisions of the Spanish Court. This is apparent in judgments concerning
arrestees' rights to legal counsel (following and citing the ECtHR's decision
in Artico (1980)) or opinions concerning the powers of investigating judges
(citing Piersack v. Belgium (1982) and De Cubber v. Belgium (1987)).
In other respects, there are many examples in which the Spanish Constitu-
tional Court has almost mimetically followed the case law of foreign con-
stitutional courts without specifically citing their decisions. This was the
case in the Court's opinion on the law partially decriminalizing the voluntary
interruption of pregnancies (Ley del Aborto, 1985), which closely followed the
German Constitutional Court's 1975 decision without expressly citing it.
More frequently, however, the Court provides precise references to the judg-
ments of the other constitutional courts from which it takes its inspiration.
The first occasion in which it did so was soon after its creation, in the Ley de
Rigimen Local case (1981), which cited German and Italian jurisprudence.
This certainly inaugurated a trend; since then, the constitutional case law
most often cited is that of the German and Italian courts. For example, the
Spanish Court relied on the case law of the Bundesverfassungsgericht to
reinforce its decisions concerning the validity of requiring a minimum per-
centage of votes to obtain parliamentary representation (Sperrklausel), the
retroactivity of tax laws, the proportionality principle, and the discrimination
against women inherent in applying to them the national laws of their
husbands. References to the case law of the Italian Corte Costituzionale are
likewise abundant in opinions concerning matters such as the creation of
telecommunications media, the admissibility of legal limitations of fundamen-
tal rights or the significance and scope of parliamentary immunity, to recall
only a few. And there are certainly express references to the caselaw of the
U.S. Supreme Court, such as New York Times (1964) v. Sullivan or Miranda
v. Arizona (1966).
However, this knowledge of, and reference to, the case law of foreign
courts does not imply that the Spanish Constitutional Court always follows
their decisions, not even when those decisions interpret constitutional man-
dates that have been incorporated directly into the Spanish Constitution.
There are several examples in which the Spanish Constitutional Court differs
with the interpretation of other courts on such matters. In other words, the
fact that the drafters of the Spanish Constitution copied elements from the
constitutions of other countries has not prompted the Constitutional Court
to reproduce in similar fashion the interpretations of their constitutional
courts. Thus, the Spanish Constitutional Court grants the repeal clause of
the Constitution different effects than those given by the German Constitu-
tional Court to a similar clause in the Fundamental Law of Bonn. The solution
adopted by the Spanish Constitutional Court with respect to the repeal
effects of the Constitution likewise differs from the case law of the Italian
Constitutional Court. Another example might be the Spanish Constitutional
Court's interpretation of the guarantee of the essential content of funda-
mental rights, an expression in the Spanish Constitution taken directly from
Article 19 of the Fundamental Law of Bonn (Wesensgehaltgarantie).While
the German Constitutional Court has interpreted this clause progressively
as a manifestation of the principle of proportionality (in the sense that is
sometimes referred to as the "relative concept" of the essential content), the
Spanish Constitutional Court has consistently maintained a "substantive"
concept of the essential content of fundamental rights, as being the "irreduci-
ble and unaffectable nucleus" of those rights.
To give other examples, neither has the Spanish Constitutional Court
strictly followed the German Court in relation to the compatibility of
European law with domestic law in the defensive manner expressed in the
German Court's Solange 1 (1974) judgment or its Maastricht decision (1993)
concerning the Maastricht treaty. And to add a final example, in contrast
to constitutional developments in Italy, the Spanish Constitutional Court
in 1981 did not deem it necessary for the national Parliament to expressly
pass "basic laws" before the autonomous communities (regions) could
approve their own "developing legislation." Thus from the onset the commu-
nities were able to exercise the powers assigned to them in the Constitution
and the autonomy statutes, without having to await the enactment of
framework laws at the national level.
doi: 10. 1093/iconlmoi038
Stephen Sedley
Lord Justice of Appeal, Her Majesty's Court of Appeal
United Kingdom
1. Is comparative constitutional law of any value?

My answer is one that you may think no participant at this congress should
give: comparative constitutional law is of infinite interest but of little or no
practical value in constitutional adjudication.
I say this, let me stress, as an insider, because in the United Kingdom every
superior court is a court of constitutional law. My sympathies are with the
British academic who has described the practice-not the theory-of compar-
ative law as judicial tourism. Tourism is enjoyable and informative, but the
artifacts which you bring back cannot be more than decorative. The real
value of what you learn is to enhance your appreciation of your own culture.
Like other British judges I refer to comparative sources in some of my judg-
ments, a number of them on constitutional issues. But no judge I know any-
where in the world has ever decided a case differently because of persuasive
decisions in other jurisdictions. Comparative sources will either amplify the
decision which the judge has already decided is the correct one or, at worst,
will be sidelined as unhelpful. This is not the isolationism of a Scalia. It
is the cosmopolitanism of a Kennedy, a Breyer, a Ginsburg-tempered by
judicial realism.
None of this is to diminish the importance of the comparative study of
constitutional law. It is simply to recognize that constitutional adjudication
is not an exportable commodity.
Nevertheless, I recognize that there is today a new dimension to the
comparative use of constitutional law in the international tribunals of which
the European Court of Human Rights is an example.
2. Methods of constitutional review

The United Kingdom has adopted at least two methods of judicial implemen-
tation of fundamental laws.
A simple monist solution has been adopted for the law of the European
Union: by judicial interpretation of the act of accession, EU law takes effect
with primacy over domestic legislation.
But in implementing the European Convention on Human Rights,
the Human Rights Act 1998 has adopted an ingenious and elegant
mechanism-the declaration of incompatibility. The immunity of primary
legislation against judicial annulment is preserved; but a court which cannot
read down domestic legislation to conform with the Convention is empowered
to declare it incompatible.
Such a declaration does not affect the validity or efficacy of the act in ques-
tion. It serves notice on Parliament that it needs to amend its legislation
in order to avoid a continuing violation of the Convention. In this way the
United Kingdom's treaty obligation and the legislative sovereignty of its
parliament are both respected.
3. Solutions
What has struck me in the judgments of the European Court of Justice and the
European Court of Human Rights, as well as in the development of principles
of due process in the international criminal tribunals, is the contrast between
the widely disparate procedures in the judges' respective countries and the
convergence of the solutions at which, as international judges, they arrive.
CONSTITUTIONAL COURT JUDGES' ROUNDTABLE 571
I happen to think that the margin of appreciation devised by the Stras-

bourg court is an enemy of legal certainty; but it too represents a method of
producing consensual solutions.
This and other experience of judicial systems outside my own have
persuaded me that the shared perception of a just outcome is a more potent
factor than legal methodology. It is a unifying factor where comparative
methodology, by emphasising difference, can be divisive.
I would argue, in other words, that comparative law, at its best, is not the
transplantation or the imitation of methods but the search for common solu-
tions. What, as a judge, I find encouraging is how frequently our solutions
converge, not because of, but in spite of, our differences of method.
doi: 10.1 093/icon/moiO39

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Comparative constitutionalism in practice

Professor Juan Colombo Campbell

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3. Extending the scope of jurisdiction to protect

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4. The political ingredient of the constitutional process

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I happen to think that the margin of appreciation devised by the Stras-

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