What is the purpose of comparative constitutional law? What is ‘comparative’ and what is ‘constitutional’ about it; and to what extent should the former be relevant to the latter?

Currently the European Union is in the process of applying certain sanctions in respect of member states that are allegedly in violation of the rule of law (RoL), a fundamental requirement of membership. Sizeable sums of development aid and international loans directed to developing countries are held back for non-observance of the RoL and loans are conditional on satisfying requirements of the RoL. Countries (and international credit rating agencies) measure legal systems against one or another standard of the RoL. The comparative law hypothesis is that there are certain common patterns in the mix of principles, rules and practices that constitute the RoL and within these clusters of patterns certain commonalities emerge. But there has been little systematic comparative study of the RoL in constitutional law, the problem being that what is considered crucial to the RoL in one country is not necessarily required in another. Yet constitutional and international courts, as well as politicians, regularly rely on the concept in adjudication, international treaties and political action. It is therefore a matter of practical importance to understand through comparison what are the common and diverging features of the RoL. Unfortunately, most of the literature on the RoL deals with its normative concepts and not what courts and other servants and masters of the law do with it (or in its name).

‘Separation of powers’ is a concept that is much used, much criticized, but rarely reflected on in contemporary comparative constitutional law.1 Before it can be discussed properly, we have to elaborate some basic distinctions. Separation of powers can be used as a shorthand description of the organization of government as a whole. Political scientists and lawyers have widely applied the notion in this way even though there is nothing distinctively normative about it. The concept can also serve as a legal argument in constitutional reasoning. Both uses are not mutually exclusive; even though the first does not refer to a normative concept, it seems to be helpful for constitutional lawyers who want to analyse the organizational structure of governments. The second one might also help non-legal researchers to understand one important element of constitutional reasoning and both uses can be intertwined on different levels. The legal argument strives to guarantee a certain organization of government, and it is applied by institutions, namely by courts, which are part of this organization. In the academic debate, both uses are often combined. Especially in the American realist tradition, legal arguments are connected with institutional analyses.2 This is fine, but it should be ensured that the argument remains clear about its claims and keeps both levels not necessarily separated, but distinct. As long as there is a methodological difference between ‘comparative constitutional law’ and ‘comparative government’, this distinction will play a role.3

In a modern sense, parliaments and constitutions are born together as two essential elements of the liberal state. Both of course had their own ancestors – in royal advisory assemblies and in legal documents binding the monarch in some way, respectively – but both reached maturity together, mutually presupposing and reinforcing. No (modern) constitution could be recognized as such had it not provided for a representative assembly, elected by all the citizens at that time entitled to political rights. Reciprocally, no (modern) parliament could define itself as a political representative assembly without one or more fundamental charters designing its main structural and functional features, attributing to it some prerogatives, and protecting the main political rights of the citizens, such as the freedom of speech, of the press and of meeting and association, in addition, of course, to the right to vote.

Examination of the state-centric dynamics of constitutions can only partially illuminate the multi-faceted characteristics of constitutional law. A statist focus often obscures both internal and external dimensions of constitutions themselves, and of the broader structures and patterns of governance that exist within and beyond nations. Either explicitly or implicitly, constitutions speak to the sub- as well as to the inter- and supra-national, and provide a lens through which obligations and pressures arising in each differing context might be reflected. Constitutions are, as such, inherently multi-layered.

Honest and competent administration is essential to legitimate constitutional government. Administrators make rules with the force of law and apply the law to particular cases. The case-by-case implementation of established policies requires citizens to trust in the impartial application of the law. However, impartiality is not sufficient for administrative legitimacy. In addition, policymaking by the executive and the agencies needs to be consistent both with the competent use of expertise and with accountability to citizens and interest groups. Policymaking delegation is the inevitable result of the weakness of the legislative process as a site for detailed policy prescriptions. Gaps and ambiguities are inevitable. Furthermore, the electoral process is too aggregated and episodic to be the only legitimate route for citizen influence on policymaking. Referenda and surveys are not a responsible option for most policy choices; they risk measuring the views of uninformed individuals, often reacting to emotional appeals. Hence, other routes to public involvement beyond voting and surveys are a crucial aspect of legitimate, representative democracy. Administrative law scholarship needs to articulate practical ways to combine public input with the competent application of technical information to policy.

In this chapter, ‘European constitutionalism’ refers to European Union constitutionalism. European constitutionalism will be examined as an epitome of transnational constitutionalism; i.e. as a species of constitutionalism distinct from state or national constitutionalism.

‘In law context is everything.’ So said Lord Steyn in the case of R (Daly) v. Secretary of State for the Home Department.1 In doing so, he was perhaps making a statement of the blindingly obvious, but that does not undermine either the veracity or the broad pertinence of the observation. Indeed, it is an insight onto which the comparative lawyer in particular, and perhaps the comparative constitutional lawyer even more especially, must fasten. One of the great virtues of comparative study is its capacity to illuminate one’s comprehension of a given legal phenomenon or system through an appreciation of how and why things are done differently elsewhere. Understanding why such differences arise can illuminate one’s ‘home’ jurisdiction in fresh ways, subtly, or even radically, changing one’s perspective, and opening up new avenues of inquiry. This can be particularly instructive when the jurisdictions under consideration are, in general, relatively similar – for in such circumstances, individual points of contrast are not readily dismissible as functions of macro-divergence. It is for this reason that comparative scholarship that examines different members of a jurisdictional family, such as the common law systems that form the focus of this book, can be so fruitful.

From its beginnings as a relatively obscure and exotic subject studied by a devoted few, comparative constitutionalism has developed into one of the more vibrant and exciting subjects in contemporary legal scholarship, and has become a cornerstone of constitutional jurisprudence and constitution-making in an increasing number of countries worldwide. This tremendous renaissance in comparative constitutional inquiry reflects a confluence of factors. Chief among them are extensive democratization and constitutionalization trends worldwide; the internalization of the legal profession and of legal education; and the rise of communication and information technologies that facilitate considerably the diffusion of constitutional concepts, and foster cross-national jurisprudential dialogue. The result has been an ever-expanding interest among scholars, judges, practitioners and policymakers in the transnational migration of constitutional ideas, and in the comparative study of constitutions and constitutionalism more generally.