Vol. 25 No. 3 (March 2015) pp. 45-49
COMPARATIVE MATTERS: THE RENAISSANCE OF COMPARATIVE CONSTITUTIONAL LAW by Ran Hirschl. Oxford: Oxford University Press. 2014. 304 pp. Hardback $29.99 Euros. ISBN: 978-0-19-871451-4.
Reviewed by Mark Kende, James Madison Chair Professor of Constitutional Law, Director of the Drake University Constitutional Law Center. Email: firstname.lastname@example.org.
Professor Ran Hirschl has written some of the most important recent books on comparative constitutionalism. In TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2007), he argued that constitutional courts across the globe have acquired enough power to be a “juristocracy.” That term is now accepted vernacular. Moreover, he theorized controversially that these courts safeguard elite interests, rather than protect the vulnerable. JURISTOCRACY fits into a line of “popular constitutionalism” legal scholarship, asserting that courts do not bring about significant social changes (Tushnet 2000, Rosenberg 2008). Other scholars dispute popular constitutionalism (Chemerinsky 2004). Now Professor Hirschl has written another significant work COMPARATIVE MATTERS: THE RENAISSANCE OF COMPARATIVE CONSTITUTIONAL LAW. His acknowledgements specify that this is the final book in a trilogy that also encompasses CONSTITUTIONAL THEOCRACY (2010). The latest book meets the high substantive and organizational standards of the first two, and takes the fortunate reader backward and forward in time. It is well written and accessible despite the theoretical topic.
In COMPARATIVE MATTERS, Hirschl contends that comparative constitutionalism’s renaissance continues but it lacks methodological rigor. The book contains a novel intellectual history of the field, and a discussion of current developments and disputes. It then advocates a “social sciences” oriented model. This model goes beyond the judicial doctrinal emphasis of law professors, which he calls “armchair constitutional research” (p. 5). He instead advocates empirical and other approaches that can answer important causation questions. He also says that external factors are leading courts to examine foreign decisions such as: “necessity, inquisitiveness, and politics.” (p. 13). Comparative constitutionalists should read this excellent and thought provoking book, even if one does not agree with all of its conclusions.
Chapter 1 is an empirically oriented discussion of how and why national high courts use constitutional decisions from other courts. While many scholars have noted this trend, Hirschl writes that, “…these accounts…leave out a crucial factor, the socio-political context within which constitutional courts and judges operate, and how this affects whether and where the judicial mind travels in its search for pertinent foreign sources to reference.” (pp. 21-22). Indeed, political scientists frequently complain about how legal scholars ignore social science literature on law, such as attitudinalist perspectives. Yet books by sophisticated comparative constitutional law professors do not ignore this rich literature. But Hirschl is right that law professors usually treat these variables in a more informal manner than political scientists.
Then Hirschl assesses various studies about how specific courts use foreign sources and examines the connection between citation [*45] frequency, and a commonality of language and history. He also shows how there is little information about whether non-Western, non-liberal, constitution-based courts, cite foreign sources. But he illuminates how certain countries have special reasons for taking their approaches (e.g., Singapore has a “four corners” rule that makes its jurisprudence insular, while Taiwan’s high court can be very cosmopolitan). And he points out that some countries ignore seemingly analogous nations, presumably for political reasons (p. 48).
One of the most important and unexpected aspects of the book, since it’s not really mentioned on the book jacket, is the author’ frequent focus on the Supreme Court of Israel, and on diverse religion laws (even Sharia) as they related to constitutional borrowing. Hirschl provides statistics on the Israeli Court’s use of foreign law. He even examines how frequently that Court relies on “Jewish law,” a form of borrowing by the secular from the religious. On another front, it’s interesting to see the high esteem that Hirschl, the juristocracy skeptic, holds for former Israeli Chief Justice Barak’s writings, given that Barak is probably the greatest judicial activist in the Supreme Court of Israel’s history (p. 48) (Barak 2006).
To clarify, Israel has no single constitution. It has “mini basic laws” and Chief Justice Barak relied on two of them, along with western jurisprudential thinking (such as references to Ronald Dworkin), to support a bold use of judicial review that had little textual or precedential support. Thus, some in Israel have criticized Chief Justice Barak for making the Court more like a juristocracy, though some critics are simply unhappy that he issued several rulings against the Israeli Defense Forces. Moreover, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit has vigorously criticized the same Barak book that Hirschl praises (Posner 2007). Posner says that the Supreme Court of Israel’s decisions under Chief Justice Barak, and Barak’s accompanying legal theories, reveal unrestrained hubris, though these criticisms are interesting because Judge Posner is a somewhat unpredictable (and brilliant) constitutional pragmatist.
In the second chapter, Hirschl explores pre-modern comparative constitutional engagement. Many scholars are familiar with Aristotle’s survey of city states in the Politics. But Hirschl provides examples from many cultures, especially Jewish and Islamic law. He shows how the “cherry picking” problem, regarding the use of foreign law, existed long before Chief Justice John Roberts of the U.S. Supreme Court discussed it during his confirmation hearings. One interesting connection is between originalism (which can be seen as a strong endorsement of national identity) and fundamentalism in religion. Both emphasize conservative strict construction (Pelikan 2004). In concluding this section, Hirschl asserts that “Alongside other new horizons of comparative inquiry discussed elsewhere in this book, religion law provides what appears to be the most fertile terrain for placing contemporary debates in (comparative) constitutional law in a broader, richer, and more sophisticated context” (p. 111). One counter-argument, however, among many is that religion law has a very different “rule of recognition” (God vs. the state). Another concern is that Hirschl does not make clear how and why some religious law becomes secularized while other religious law does not, though perhaps this causation analysis is beyond the book’s scope.
Chapter three continues the global intellectual history from the 16th Century to the present. The discussion spans [*46] well-known figures (Montesquieu, Grotius) to the relatively obscure such as John Selden, who was a British parliamentarian, a political theorist, a progenitor of the international law of the sea, and a Jewish law scholar. Hirschl’s assessment of Simon Bolivar’s contributions to Latin American constitutionalism is also interesting. Then Hirschl discusses the U.S. Supreme Court’s fairly recent controversy over the use of foreign constitutional law, and compares it with Canada’s more cosmopolitan approach. Hirschl correctly points to the “rise of ‘proportionality analysis’ as the lingua franca of comparative constitutional jurisprudence” (Beatty 2005).
In chapter four, Hirschl argues that comparative constitutional law should be refocused as comparative constitutional studies. The field should then proceed beyond legal doctrine, and take on matters such as constitutional design, the political conditions conducive to reform, and other topics (p. 162). For example, he mentions the political science insights of Dahl and McCloskey. By contrast, he says that the comparative constitutional law professoriate has dominated such that:
“Two dozen court rulings from South Africa, Germany, Canada, and the European Court of Human Rights alongside a more traditional set of landmark rulings from the United States and Britain and an occasional tribute to India or Australia, now form an unofficial canon of “global constitutionalism” that informs comparative constitutional law syllabi throughout much of the English speaking world (p. 163).
Finally, he offers five reasons why the social sciences approach should control. They offer well-developed theories of judicial decision-making, sophisticated theories about why constitutions emerge and collapse, studies of constitutional design, studies of how constitutions work outside the courtroom, and theories that can generally supplement legal approaches. He then gives examples in these areas.
Chapter five explains how neither universalism nor contextualism can prevail in the debate on comparative constitutional inquiry. He also discusses the important “global south” critique of comparative constitutional law, though he admits there is an emerging literature about so-called developing nations (Maldonado 2013).
Chapter six examines how to develop a suitable methodological approach that includes “small-N” and “large-N” studies in comparative constitutionalism. He mentions an important book by Zachary Elkins, Tom Ginsburg, and James Melton that surveyed the globe’s constitutions over time. He calls it “Melkinburg” (2009). That book concludes that the average national constitution lasts about 17 years, and offers arguments about designing a durable charter. Hirschl’s book also has an epilogue.
Hirschl is ambitious and seeks causality above all. He therefore discusses different methods such as focusing on one country, on similar cases, different cases, prototypical cases, the most difficult cases, or outlier cases. He does not, however, just talk about social science. He also references comparative law’s differing theories such as functionalism, and taxonomies. But Hirschl does not see legal methods as offering much explanatory power. He acknowledges that “large-N” studies run the risk of missing some nuances but he is captivated by them (p. 275). Besides the Ginsburg study, he references a Goderis, Versteeg study which concludes that “constitution makers are affected by the status of constitutional rights in countries with which they share a common legal origin, compete for foreign [*47] aid, share a common religion, and share colonial ties” (p. 272).
In the end, one cannot argue with Hirschl’s thesis that a more diverse and rigorous methodology will benefit the field. But there are problems with nuance and other issues, which even Hirschl acknowledges, as mentioned above. They can be seen in his somewhat casual treatment of South Africa. For example, he writes that the South African Constitutional Court has grown more timid in its treatment of socio-economic rights (p. 222). Yet this is easily disputable (CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY V. BLUE MOONLIGHT PROPERTIES 2011). Moreover, the South African and other judiciaries draw on legal scholarship for normative ideas and support. This is one reason why legal scholarship is so important. These courts, however, are not likely to have as much use for the descriptive political science scholarship that Hirschl admires. Thus, his approach cannot fully address why legal ideas migrate.
The BLUE MOONLIGHT case example suggests that social scientists and supporters of large-N studies should not underestimate the continuing value of books demonstrating expert jurisprudential knowledge of a foreign court’s rulings and of that country, which is possessed by many law professors as well as by political scientists. Hirschl may also be overly optimistic about what the large-N studies can achieve in determining causality, as there are always issues surrounding coding, data results, interpretation, and explanation. And again, it’s not entirely clear how these causality determinations benefit courts much. But in the end, Hirschl has produced a masterpiece that deserves a wide audience and that sets an agenda for much research.
Aharon, Barak. 2006. THE JUDGE IN A DEMOCRACY. Princeton, NJ: Princeton University Press.
Beatty, David. 2005. THE ULTIMATE RULE OF LAW. Oxford: Oxford University Press.
Chemerinsky, Erwin. 2004. “In Defense of Judicial Review: The Perils of Popular Constitutionalism.” UNIV. ILL. L. REV. 673. http://scholarship.law.duke.edu/faculty_scholarship/1398/.
Elkins, Zachary, Tom Ginsburg and James Melton. 2009. THE ENDURANCE OF NATIONAL CONSTITUTIONS. Cambridge: Cambridge University Press.
Goderis, Benedikt and Mila Versteeg. 2013. “The Transnational Origins of Constitutions.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2216582.
Hirschl, Ran. 2007. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Harvard: Harvard University Press.
Hirschl, Ran. 2010. CONSTITUTIONAL THEOCRACY. Harvard: Harvard University Press.
Maldonado, Daniel Bonilla. 2013. CONSTITUTIONALISM OF THE GLOBAL SOUTH: THE ACTIVIST TRIBUNALS OF INDIA, SOUTH AFRICA, AND COLUMBIA. (ed.) Cambridge: Cambridge University Press. [*48]
Pelikan, Jaroslav. 2004. INTERPRETING THE BIBLE AND THE CONSTITUTION. Yale: Yale University Press.
Posner, Richard A. 2007. “Enlightened Despot.” NEW REPUBLIC. http://www.newrepublic.com/article/enlightened-despot.
Rosenberg, Gerald. 2008. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE (2d ed.). Chicago, IL: University of Chicago Press.
Tushnet, Mark. 2000. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton: Princeton University Press.
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY V. BLUE MOONLIGHT PROPERTIES, 2012 (2) SA 104 (CC) (Dec. 1, 2011) Case Note: South African Constitutional Court rules that the judiciary has the power to second guess a municipality’s budgeting priorities which ignored certain housing needs, because budget records showed a surplus. There is a discussion of several other recent bold South African Constitutional Court decisions in: Kende, Mark. 2014. “Enforcing the South African Constitution: The Fight for Judicial Independence and Separation of Powers.” 23 TRANSNATIONAL LAW AND CONTEMPORARY PROBLEMS 35, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476649.
© Copyright 2015 by the author, Mark Kende.