Vol. 13 No. 10 (October 2003)

DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW edited by Vicki C. Jackson and Mark Tushnet. Westport, Connecticut: Praeger, 2002. 288 pp. $64.95 Hardcover. ISBN 0275970698.

Reviewed by Michael C. Tolley, Associate Professor, Department of Political Science, Northeastern University Email: m.tolley@neu.edu

DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW is an edited volume of thirteen original essays organized into three parts: Constitutional Conceptions; Constitutions, Courts, and Legitimacy; and Constitutions, Rights, and Reframing. This book stems from a conference at the Georgetown University Law Center in 1999 organized around the theme of comparative constitutional law. The editors, Vicki Jackson and Mark Tushnet, have collaborated before on their 1999 COMPARATIVE CONSTITUTIONAL LAW casebook. The contributors, in the words of Chief Justice William Rehnquist who wrote the foreword, are “certainly a distinguished group of scholars, jurists, and government officials…from throughout the world” (p.vii).

The book’s purpose, admirably achieved, is to present a wide variety of work in the emerging field of comparative constitutional law. Included are works on constitutional development in the Arab world, in Africa (Dullah Omar; and Dennis Davis), Asia and Japan (Ratna Kapur; and Kazuyuki Takahashi), Europe (Geoffrey Marshall; Jean-Pierre Theron; Winfried Brugger; and Thomas Fleiner), and in North America (Lorraine Weinrib). In addition, there are two fine essays on the influence of globalization and the emerging fora of transnational litigation on a nation’s constitutional law and legal system. But what will certainly make this book enduring are the insights these essays provide into the important theoretical and methodological issues that are beginning to define the field of comparative constitutional law.

Why compare? What can be learned from the comparative study of constitutional law? In his essay “Comparative Constitutional Law: Its Increasing Relevance,” Donald Kommers identifies four benefits: 1) “comparison exposes students to a range of models that illuminate the meaning or foundation of constitutional justice in our time;” 2) “comparison enhances our power of discernment by enjoining us to differentiate the accidental, particularistic, or autobiographical elements of constitutions from their more general, inclusive, or universalistic components;” 3) “comparison shows that we Americans are not altogether exceptional and that, with respect to human rights and democratic governance, we have much in common with other constitutional democracies;” and 4) “we compare to observe differences, and here I refer to many contrasting constitutional currents in the light of which Americans might wish to reassess our own fundamental law” (p.62). The essays collected in this volume show “a range of models” of constitutional justice, begin to differentiate the particularistic from the universalistic, and suggest, for American scholars and judges, that there is a world elsewhere that can enrich the study and development of U.S. constitutional law.

The emergence of what one commentator has called “a global community of courts” (Slaughter, 2003, at 192), where constitutional courts are borrowing and citing each other’s precedents, is certainly going to help advance the field of comparative constitutional law. Dennis Davis, who is judge in the Cape Provincial Division of the High Court of South Africa and one of the four judges contributing essays to this volume, explains how comparative constitutional ideas are being used to aid his own deliberative process. With the constitutional protection of cultural rights in mind, Judge Davis writes: “South Africa is not alone in dealing with the problem of reconciling the right to culture with apparently contrary commitments in the constitution. The range of concern about the role of Aboriginal law in Australia that was triggered by the Mabo cases is indicative of a similar problem of recognition….[And t]he idea that cultural autonomy is a constitutional right worth preserving finds recognition in some jurisdictions. The Canadian Supreme Court has granted a considerable level of meaningful autonomy in R. v. SPARROW” (p.227). The rich cross-fertilization of constitutional ideas and the active dialogue judges are having with foreign precedents will be grist for other comparative constitutional law scholars to mill.

The timing of this book’s publication could not have been better. The international and comparative constitutional law influences in two high profile cases from the 2002 Supreme Court term are likely to attract attention to this book. In LAWRENCE v. TEXAS, Justice Kennedy cited DUDGEON v. UNITED KINGDOM (1981), a decision of the European Court of Human Rights striking down laws that proscribed consensual homosexual conduct in Northern Ireland, as persuasive authority for the point that Western civilization has come to view anti-sodomy laws as mere prejudice and a violation of the rights of a politically unpopular group. And in GRUTTER v. BOLLINGER, Justice Ginsburg’s concurring opinion, joined by Justice Breyer, cites both the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women in support of the majority’s insistence that affirmative action programs have an end point. Indeed, it appears that the hope expressed by several contributors to DEFINING THE FIELD that the U.S. Supreme Court will become more receptive to the constitutional experiences of other nations is beginning to be realized.

DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW is an important contribution to a rich tradition of public law scholarship on courts and constitutions in comparative perspective. The essays included here suggest that the field is alive and well with a global community of scholars and practitioners interested in, and exploring answers to, many of the same fundamental questions at the heart of constitutional government.

REFERENCES:

Jackson, Vicki, and Mark Tushnet (eds.). 1999. COMPARATIVE CONSTITUTIONAL LAW. New York: Foundation Press.

Slaughter, Anne-Marie. 2003. “A Global Community of Courts,” 44 HARVARD INTERNATIONAL LAW JOURNAL 191.

CASE REFERENCES:

DUDGEON v. UNITED KINGDOM, 45 Eur. Ct. H.R. (ser. A) (1981).

GRUTTER v. BOLLINGER, __ U.S. __ (decided June 23, 2003).

LAWRENCE v. TEXAS, __U.S. __ (decided June 26, 2003).

R. v. SPARROW, 1 SCR 1075 (1990).

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Copyright 2003 by the author, Michael C. Tolley