Introduction to Comparative Constitutionalism
Nussbaum, Martha C., Chicago Journal of International Law
Comparative constitutionalism is an area of legal scholarship with a long history, and it has long been an area in which legal scholars collaborate with scholars in other disciplines, such as political science, philosophy, and sociology. Recently, as globalization has fostered closer relations among nations and as international treaties and agreements have played an increasing role in many nations' understanding of their domestic legal traditions, the need to study constitutional issues comparatively has come to seem even more urgent and the interdisciplinary collaboration involved even more fruitful and exciting.
The symposium on Comparative Constitutionalism centers on Mark Tushnet's article, State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations.1 Tushnet's article displays not only a mastery of traditional techniques of comparative analysis of text and interpretation, but also a sensitivity to the larger social and political forces in societies that affect the understanding of constitutional guarantees. The field of comparative constitutionalism is intrinsically cooperative and interdisciplinary, since it requires a depth of knowledge about comparative political structures that lawyers as such do not typically acquire from their legal education. It is therefore appropriate that Tushnet's commentators include a law professor with philosophical inclinations (Epstein), a law professor who is also a political scientist (Sunstein), and a political science professor who is also a philosopher (Young). Such a cooperative group is needed to shed light on the tangled relations between legislatures and courts, and between both of these and larger social values.
Why should we look at constitutional provisions comparatively? Traditional courses in constitutional law are not comparative. Comparative courses are becoming more common, but they are not part of the core of required law courses; often, in fact, they are offered by the department of political science, rather than the law school. And yet I would argue that the comparative study of constitutions is an essential part of learning constitutional law, important in all societies, but especially urgent in the United States, whose general culture tends to be unusually inattentive to other nations and their ways of doing things. There are three powerful reasons for making comparative constitutional law far more central in the law school curriculum than it currently is.2
First, we do not fully understand our own Constitution and its guarantees until we have thought about other ways of organizing similar material. This is a general point about human understanding: all too often we treat what is familiar as totally unremarkable and "natural," thinking that our way is the way things must be. It is only when we see another perfectly reasonable but very different way of doing things that we begin to recognize that our way is actually one option among many, the result of history and choice rather than necessity. And it is only after we have achieved that recognition that we begin to be able to ask ourselves why our system is the way it is, whether it really has to be that way, and what system, if any, might be better.
The essential importance of comparison for understanding and evaluation is a theme that has deep roots in Western traditions of inquiry. The ancient Greek historian Herodotus, in order to study and ultimately evaluate the ethical and political values of his homeland, traveled around the entire known world, recording the customs and values of Persians, Egyptians, Scythians, and many other peoples. It was only after an extremely lengthy comparative account of many different areas of value and culture that he judged himself to be in a position to evaluate his homeland. In some areas, the result of the comparative inquiry is deflationary: what feels to Greeks like a deeply held ethical conviction is revealed to be a mere habit, with no compelling reasons in its favor. …