Author Interview: Contentieux constitutionnel comparé. Une introduction critique au droit processuel constitutionnel

Guillaume Tusseau

Sciences Po

Tell us a little bit about the book.

Current dominant conceptions of constitutionalism grant judges a vital part in constitutional governance. By guaranteeing the full respect of the supreme law of the land, judges are responsible for ensuring the proper functioning of public authorities and the protection of fundamental rights. The deepest political antagonisms and the most complex ethical questions are frequently presented to judges, instead of classical representative institutions. This book explores this situation as a cultural fact that is significant in the world we live in. It deals with the history of constitutional review, comparative methodology, constitutional judges, constitutional courts, constitutional litigation, constitutional procedure, and constitutional decisions. 

What inspired you to take up this project? 

This treatise is a sequel to a previous book, in which I criticised the distinction between two main models of constitutional review, an American one and a European one. Such a divide appeared grossly inaccurate from an empirical viewpoint, a theoretical viewpoint, and an ideological viewpoint. In my conclusion in that book, I argued that criticising existing comparative intellectual tools was only part of the job. Proposing new ones is the main purpose of this new book, Comparative Constitutional Review. A Critical Introduction to Procedural Constitutional Law.

What challenges did you face in writing the book? 

The book offers the first global examination of the current practice of constitutional review. It addresses much more than the “usual suspects” in this respect, and covers more than 200 systems (several states having sometimes used more that one form of constitutional justice in their history) in a systematically comparative perspective. 

In order to deal with this topic and solve the methodological inaccuracies I had identified, in this book I venture to propose an original comparative methodology (which has also led me to publish a specific book on the topic of methodology). It relies on a pragmatist perspective that combines instruments drawn from the respective toolkits of political science, procedural law, and cultural studies. In order to understand the influence of constitutional judges in contemporary polities, I start from a realist perspective and regard them as full-blown legal entrepreneurs. Although it highlights the decisive contribution of judges to the governance of our societies, the study of judicial politics by political scientists tends to neglect the most technical aspects of the enforcement of constitutions. Nevertheless, the unique features of the governance with (and by) judges, i.e. the ways judges make decisions that decisively affect our collective life, are mostly due to their judicial character. This aspect is mostly regarded as the province of jurists, who tend to ignore or downplay the power of judges in spite of its relevance for current constitutional practice. I try to offer an original combination of both perspectives. More specifically, I contend that a proper understanding of the way judges create law and enjoy a share of political power requires paying attention to the most technical aspects of legal procedure (How are constitutional judges appointed? Who can activate constitutional review? How is the examination of evidence organised? What are the procedures of judicial decision-making? How are constitutional decisions drafted? What are the resources of other actors to evade constitutional enforcement? What are the judges’ resources to avoid that evasion? Etc.). I thus borrow from “procedural constitutional law”, which is known in Latin America and Germany as “derecho procesal constitucional” and “Verfassungsprozessrecht”, respectively. Both in the substance it deals with and in the perspective it suggests, this book truly is the result of a comparative outlook. 

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

I insist that the book offers only one viewpoint on constitutional review. I do my best to expose in a truly scientific way why and how I have been led to this proposal, so as to pave the way for an open discussion. That is why the book is conceived of as a “critical” introduction. Moreover, it tries to resist any fascination for constitutional review. This is why, in line with the existing literature on authoritarian constitutionalism, I address the contribution of constitutional judges not only to democratic governance, but also to other political environments. Refraining from any over-broad claims as to the success and merits of judicial review, I discuss its institutional performance when compared with other forms of constitutional enforcement. I also insist on the extent to which its power is not given once and for all, but results from the strategic moves judges are able to make in the respective environments where they operate, as well as the moves that are available to the other institutional players, either to support judges or to counter their action. The book thus sheds light on the way contemporary constitutional law is shaped and reshaped through institutional interactions. 

By covering more case studies than usual, and different case studies than usual, I hope this book will expand the scope of comparative constitutional studies. By proposing an original methodology, I also hope it will contribute to the current debate regarding the epistemology of comparative law. In a nutshell, this book is a contribution to what John Dewey aptly called the “enquiry”, understood as an ongoing process of collective and international exchange. 

What’s next?

I am currently preparing a new edition of my handbook of constitutional law and political institutions (Paris, Le Seuil). As well as an update of all the materials covered by the previous editions, it will include two new chapters. One deals with Latin American constitutionalism and the other with Islamic constitutionalism. In terms of collective research, I am proud to be involved for the next three years in the inter-continental project REMOVE (Repensando la migración desde la frontera de Venezuela: nuevo programa académico en movilidad humana e convivencia en la Comunidad Andina) of the European Commission’s Education, Audiovisual and Culture Executive Agency. The project gathers several European and Latin American universities and addresses international migration, one of the most heated issues of the day. 

Guillaume Tusseau is a Professor of Public Law at Sciences Po Law School, France.