Author Interview: Transnational Evaluation of Constitutions: Through the Prism of Human Rights and International Law

Ali Shirvani

Xi'an International Studies University

Tell us a little bit about the book.

This book suggests a method that uses legal informatics in constitutional texts to automate and mechanize legal analysis. Legal informatics is the study of the structure and properties of information, the application of technology to electronic data storage and retrieval; behavioural analysis; and symbolic logic. The book designed an evaluation method that connects and compares the subjects of international law via their constitutions and constitutional topics in a transnational regime.

It provides a hypothetical classification of constitutions through international law and human rights values used in any constitution, which draws connections between the inclusive standards of international law and human rights contained in the constitutions. Consequently, an evaluation method will be available for users to rank any constitution potentiality of analysis for grounds of any commitment and responsibility of the states concerning international law and human rights.

What inspired you to take up this project? 

There were three ongoing events that inspired the project.

First, the Tunisian Revolution (known as the Jasmine Revolution), followed by the Arab Spring caused by the continued negligence /violation of peoples’ rights, which led to revolutions and consequently to changes of constitutions, which both seemed national matters.

Second, constitutional changes under international law subjects (States) consideration and United Nations Security Council active engagement, such as the Security Council resolution approving a 'No-Fly Zone' over Libya, or authorizing 'Necessary Measures' to Protect Civilians, which are international law matters.

And third, the process of constitution-making in Tunisia and Libya under international law consideration and comparative constitutional law experiences.

These events sparked the question whether there could be a way to avoid such national violation of rights that lead to international law engagement and, consequently, to constitutional change. In other words, can a constitution be evaluated by international law before it falls into the level of breaching international peace and security sample revolutions such as those in the Arab Spring?

Whose work was influential on you throughout the course of the project?

There are specific works that either influenced or helped me a lot while working on the project.

1) The Endurance of National Constitutions authored by James Melton, Tom Ginsburg, and Zachary Elkins. 

This book provides a comparative analysis of the endurance of a constitution before it changes. A comprehensive analysis of what makes constitutions survive, adapt, or collapse; which also provides insights into revolutions to change constitutions, potentially a breach of international peace and security.

The book helps to understand the critical moments such as revolutions to amend a constitution or expecting a revolution. It provides a comparison of those critical moments, here revolutions, to avoid the violation of the rights of the people, those critical moments that states as subjects of international law may expect the breach of international peace and security.  

2) Constitutionalism in Islamic Countries: Between Upheaval and Continuity; book edited by Rainer Grote and Tilmann Röder. 

This book helps to reveal Islamic Constitutionalism as a recent pattern of constitutional change. When the pattern is connected to the endurance of constitutions provided in the Ginsburg and Melton book, the result clarifies the endurance of those Islamic constitutions that are potentially capable of triggering a revolution. In the bigger picture, those constitutions are ranked to the level of the risk of the breach of international peace and security. Such connection is neither international nor national but transnational, and the process of ranking here is called the evaluation of constitutions.

3) Comparative Constitutions Project (CCP), a unique data mining source that facilitates computational and informational analysis of constitutions.

Without these three works, the writing of my book would have been almost impossible.

What challenges did you face in writing the book? 

A significant challenge as a researcher was asking the right question to the right person. For example, some international law scholars limited the question of constitutional change to the physical borders of countries, meaning that they consider constitution-making as a process that international law has nothing to say about. However, public law and comparative constitutional scholars agree on transnational regimes connecting national constitutional topics via international concepts, such as constitutional rights and human rights, we the people and all humankind, or sovereignty in the constitutions, and sovereignty in international law. 

The other challenge was to access reliable and official texts of the constitutions in English and a harmonized constitutional discourse. Constitutional discourses are the same discourses that are different when a constitution is translated from another language to English. However, constitutional discourses are harmonized when there is a unique professional system, and the translation standard for all non-English constitutions is followed. Sometimes the official English translation of a constitution does not use a harmonized constitutional discourse as it is used in other constitutions. Therefore, comparativists cannot match and compare such discourses easily. CCP fills this gap and provides a constitutional discourse with its tools that make the process of constitution-making and constitution analysis accessible, free and international.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

I hope this book can contribute to the computational and information analysis of constitutions for international human rights institutions. I hope that the idea of the book, which is the evaluation of constitutions, can be used in a way to prevent an abrupt constitutional change such as a revolution following the violation of people’s rights. In other words, nation states and international human rights institutions can evaluate national constitutions and their need for change before any breach of international peace and security.

What’s next?

There are two projects I am working on simultaneously, both of which are aligned with the idea of transnational evaluation of constitutions. The first is to use coding methods to connect CCP raw data to software that can analyze different aspects of constitutions, while the second is to evaluate self-introduced epithets contained in constitutions such as ‘Islamic’ and ‘republic’ in transnational discourses.

Ali Shirvani is currently an associate professor at the School of Oriental and African Studies of Xi'an International Studies University and a non-resident fellow at the Center for China and Globalization (CCG), P. R. China.