Rainer Grote, Frauke Lachenmann & Rüdiger Wolfrum (eds)
A New Work on Comparative Constitutional Law
An aspiring new work in the field of comparative constitutional law has recently seen the light of day: The Max Planck Encyclopedia of Comparative Constitutional Law, edited by Rainer Grote, Frauke Lachenmann and Rüdiger Wolfrum and published by Oxford University Press at www.mpeccol.com. It seeks to cover all aspects of constitutional law from a geographically broad perspective. In their endeavour, the Editors are drawing on the technical experience gathered in the making of Rüdiger Wolfrum’s Max Planck Encyclopedia of Public International Law, published by OUP at www.mpepil.com as a reference work with more than 1,600 entries; one of the most cited reference works in the field.
Experts from all over the world have been invited to contribute to MPECCoL, which went online in 2017 and is now being continually expanded. MPECCoL is overseen by an Advisory Board comprising David J. Attard, Helmut Aust, David Bilchitz, Laurence Burgorgue-Larsen, Manuel José Cepeda Espinosa, Jongik Chon, James Crawford, Charles M. Fombad, James Edward Fowkes, Justin Orlando Frosini, Babacar Kanté, Hanno Kube, David E. Landau, Liora Lazarus, Sundaresh Menon, Fred L. Morrison, Suzie Navot, Jasna Omejec, Francisco Orrego Vicuña, Ergun Özbudun, Marie-Claire Ponthoreau-Landi, P. Chandrasekhara Rao, Volker Röben, Cheryl Saunders, Peter-Tobias Stoll, Adrienne Stone, David Tan, Li-ann Thio, Konstantine Vardzelashvili, Erika de Wet, and Katja Ziegler.
Why an Encyclopedia on Comparative Constitutional Law?
The encyclopedic format has long been considered a thing of the past with no place in modern academia. However, the internet has been a game changer. Suddenly, scholars have vast amounts of material at their hands that need to be organized (think resources such as the Constitute Project and the Oxford Constitutions of the World). The challenge now is to collect all that material in a comprehensive framework that also offers analysis.
But MPECCoL has the potential to be more than just a comprehensive source. It may yield insights that comparative studies with a limited scope simply could not deliver. Specifically, the Editors are interested in testing two traditional theses which are diametrically opposed to each other: 1. each constitution reflects the legal culture of the nation in question (Montesquieu, Herder) versus 2. all constitutions serve identical functions and accordingly have many things in common (Bentham).
A superficial look at recently drafted constitutions yields disparate results. Since the mid-20th century, intersections and cross-references between constitutions have multiplied; seemingly proving the Bentham paradigm that there is a shared ‘grammar’ of government. Various constitutions, including the Canadian Charter of Rights and Freedoms, have influenced constitution-making in New Zealand, Hong Kong, Israel, and South Africa. South Africa’s Constitution even acknowledges this indebtedness to other constitutions by empowering courts to consider foreign law when interpreting the Bill of Rights. The same is true in respect of the new constitutions in Eastern Europe.
The more recent developments in Africa and in Latin America, on the other hand, resulted in a new wave of constitutions whose underlying philosophy is not as easily ascertained. They were evidently influenced by international law, in particular as far as the protection of human rights and minorities was concerned. Nevertheless they – for example, Bolivia, Peru and Ecuador – emphasized the dominant relevance of their own legal culture, which was often forgotten or neglected when these States were established in the 19th century). One might even argue that they employed international law to strengthen their historic culture.
Practical experiences reflect the ‘existential tension’ (Ran Hirschl) in comparative law between ‘universalists” such as Alan Watson who emphasize the common elements of legal systems, irrespective of time and place, and ‘particularists’ or ‘culturalists’. MPECCoL may serve to test the field’s potential to produce generalizable conclusions, or other forms of nomothetic, ideally transportable knowledge. This must be done by testing the universalist–particularist dichotomy comprehensively and without a selection bias that might predetermine the choice of material. If there are to be sustainable, transferrable findings, these can only be based on an outcome-independent, empirical study of constitutional issues undertaken with the help of regionally based scholars and practitioners that have first-hand access to and understanding of the constitutional discourses in their regions. This may run counter to the liberal intuition of searching for a political ideal of ordered liberty among nations with ‘modern’ systems; yet omitting or dismissing the perspectives of those ‘non-liberal’ societies that constitute a great part of the world means excluding them from the discourse and the study itself from meaningful insights.
MPECCoL may thus help to establish whether there exists an acquis constitutionel which can be distilled from the existing constitutions and which might or should be reflected in new ones. It will be ascertained whether there exist unsurmountable cultural legal particularities reflecting the legal history, the dominant religious affiliations and traditions in a particular State or region, and whether these historical, cultural or other considerations hinder constitutional borrowing and even prevail over considerations of international public law. It has also to be seen whether international public law exercises a dominant influence upon the formulation of new constitutions (and possibly on existing ones) notwithstanding the prohibition to interfere with domestic affairs enshrined in Art. 2 UN Charter.
By means of its empirical comprehensiveness the Encyclopedia will not only test the assumption that there are commonalities across (all or most) constitutional systems, but will also examine the methodologies most frequently used with comparative constitutional law. Which classifications work, which fail? Are there governmental functions that can be said to be near-universal, or is this a Western fallacy?
In spite of the widely acknowledged legal and societal relevance of the emerging field, not least for new and post-conflict states, comparative constitutional law reference works with a truly global outlook are all but non-existent. At the heart of the continuous Euro- and US-centricity in constitutional scholarship are some very practical problems. As Ran Hirschl recently wrote: ‘Adding to the confusion is that self-professed ‘comparativism’ sometimes amounts to little more than a passing reference to the constitution of a country other than the scholar’s own or to a small number of overanalysed, ‘usual suspect’ constitutional settings or court rulings. The constitutional experiences of entries regions—from the Nordic countries to sub-Saharan Africa to Central and South East Asia—remain largely uncharted terrain, understudied and generally overlooked. Selection biases abound (Comparative Matters: The Renaissance of Comparative Constitutional Law (OUP 2014) 4–5).
Hardly less problematic than their geographical selectiveness is the ideological baggage that many comparative studies carry. In the words of Rosenfeld and Sájo, ‘[c]ritical theorists have argued that comparative constitutional law has a colonizing and hegemonic edge, as it tends to project the gloss of a dominant constitutional culture, such as that of the United States or Germany, onto constitutional systems operating in former colonies and other developing polities’ (The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 12).
These are the pitfalls that MPECCoL seeks to avoid, and accordingly, the challenges that MPECCoL contributors face are numerous. Their analysis of a given constitutional topic shall not be limited to the US and Europe but must be geographically comprehensive, covering at least those jurisdictions where the topic originates; has assumed a characteristic meaning; has been the subject of judicial interpretation by the highest court(s); and/or has impacted other constitutions.
Articles follow a structure that starts with a definition of the constitutional term; delineation of overlapping concepts / disambiguation; evolution (historical) with special attention to influences and cross-references; comparative description (present day) of role and meaning in the context of individual constitutions; and a comparative assessment (past, present and future) of the impact on the political/legal order within and beyond the referenced states.
It is a daunting task, made more difficult because the encyclopedic format demands comprehensiveness, conciseness, and neutrality. Yet it has already produced impressive results and will no doubt continue to do so as the Encyclopedia grows.
MPECCoL will be expanded continuously to comprise around 600 entries in 2020. We, the Editors, are hoping to attract experts, including young researchers, from all jurisdictions to join the discourse. Interested scholars may direct their inquiries to email@example.com.