Author Interview: Droit(s) constitutionnel(s) comparé(s)

Marie-Claire Ponthoreau

Université de Bordeaux

Marie-Claire Ponthoreau tells us about the second edition of her award-winning book ‘Droit(s) constitutionnel(s) comparé(s)’

Tell us a little bit about the book.

The title of this book is difficult to translate into English. It plays with the singular and the plural by putting “s” in parentheses in “comparative constitutional law”. I wanted to emphasize both the diversity of constitutional systems and the standards of the constitutional law discipline, and to show that there are several ways of thinking about constitutional law and comparison, depending on the objectives pursued. This is why this book does not propose one method but several methods adapted to the objects studied and to the aims of the comparison. I am in favour of a pluralist comparativism and comparative approaches that justify the choice of cases and methods, even if the book insists on the contextual and cultural approach. In particular, the new edition makes room for the postcolonial perspective. The book looks like a reflection guide illustrated by case studies. Depending on the choice of comparison, different ways of conceiving constitutional matters take shape. Constitutional law appears in its heterogeneity. This revised and expanded edition incorporates the major upheavals of the last decade. The most striking is the end of a monolithic representation of the globalization and convergence of constitutional rules. Now, constitutionalism goes together with multiple adjectives that show the difficulties of defining it in a context that includes experiences well beyond the Western and Atlantic horizon.

What inspired you to take up this project? 

This project was influenced by both my experience as a PhD student and as a professor. During my time as a PhD student at the European University Institute (Florence, Italy), I underwent a learning process that is essential for any comparative lawyer. I would define this learning as a process of deconstructing and then reconstructing what I learned in law school. Thanks to the context of the Institute, I was not led to destroy what I had learned up to that point, but rather to put my legal knowledge on the table in order to reconstruct it by integrating other modes of legal reasoning or, at least, by realizing that we do not necessarily reason in the same way across legal systems. Put in more general terms, acquiring knowledge of foreign law requires an interest in another legal discourse than the one in which one was formed. Entering a foreign legal system necessarily leads to questioning the epistemological stakes of the comparison. Necessarily does not mean, however, consciously. If I think back on my experience, the process has partly been unconscious. It is only once I myself had judged the work of others—in particular as a member of thesis juries—that I really initiated a reflection having noticed a preponderant tendency in PhD theses to a use, which I would describe as decorative, of comparative law. At this stage, I made another observation: that of the relevance of epistemological and methodological questions in comparative law.  In the context of globalization, comparative lawyers have been engaged in a critical debate, particularly since the year 2000. My objective was to transfer these questions to comparative constitutional law, as this discipline had remained indifferent to these methodological aspects for too long.

Whose work was influential on you throughout the project?

The work of Italian comparative lawyers has played an important role. In addition to the work of Alessandro Pizzorusso, the writings of the private law comparative lawyer Rodolfo Sacco have above all contributed to making me aware of the invisible dimension of law. Thus, these readings led me to apprehend certain constitutional issues little studied by constitutional scholars: for example, the symbols of the state, preambles, constitutional cultures or the symbolic function of constitutions. The interest in going beyond the normative approach of the constitution led me to read in particular the writings of Günter Frankenberg.

What challenges did you face in writing the book? 

The main challenge in writing this book was to find a structure that would meet the need to set out the epistemological and methodological issues and to deal with several constitutional objects to illustrate the debates and controversies related to methodological choices. I finally opted for simple and recurrent questions of comparative legal studies. Why compare? How to compare? What to compare? These are classic questions, but they are adapted to constitutional scholars while drawing on work that goes beyond the usual field of constitutional studies. I explain this in an introductory chapter on comparison and comparative constitutional law or/and comparative constitutional matters. By its structure, this book does not meet the usual canons of the “manuel à la française”. I think that it is more suited to the definition of a "guide for reflection", in particular for advanced students in their study of law. The choice to refer explicitly to my experience as both a teacher and a researcher also makes it an original object.

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

The first edition of the book won an award in France. At the time, I remember that a colleague working in the UK encouraged me to publish an English version. I was probably wrong not to do so, considering the editorial production since 2010 in this same field in English. I was part of a movement of thought that was already in action and this has been confirmed over the past decade. What has emerged from this intense debate is a greater interest in and attention to methodological issues on the part of constitutional scholars around the world. In France, this book has met a need, especially among PhD students. I also hope to inspire comparison by showing what is strange in what is familiar. This is why I have placed particular emphasis in the new edition on the differentiated forms of constitutionalism.

What’s next?

I currently have three projects in progress. The first is the publication of the proceedings of a symposium on the territorial trap. This next publication questions the limits of constructions that mobilize, more or less consciously, the notions of "territory" and "space", and that sometimes weaken or neutralize the application of the law itself. The second is the renewal of the IACL research group on the use of foreign precedents by constitutional judges 10 years after the first project. Together with Tania Groppi and other researchers, we plan to be in Johannesburg for the next IACL World Congress in December 2022. We hope to publish again the results of this international research. The last one is a writing project that I have been carrying for too long now that looks at contemporary forms of constitutionalism. I lack the time to finish writing it… 

Marie-Claire Ponthoreau is Professor of Constitutional Law and Comparative Law at the Université de Bordeaux (France)

Droit(s) constitutionnel(s) comparé(s) is available for purchase at Éditions Economica.