Vol. 14 No. 5 (May 2004), pp.316-319

COMPARATIVE CONSTITUTIONAL TRADITIONS, by James T. McHugh. New York: Peter Lang Publishing, 2002. 235 pp. Paper $22.95  €24.20  £16.00. ISBN: 0-8204-5800-7. 

Reviewed by Annette Marfording, Faculty of Law, The University of New South Wales. Email: a.marfording@unsw.edu.au . 

COMPARATIVE CONSTITUTIONAL TRADITIONS is designed as a teaching text for law and politics students. It provides a very useful overview of eleven constitutional traditions representing a number of different regions, cultures, and socio-economic conditions. Written from a political science perspective, it is a welcome addition for students to more narrowly focused works published over the last decade that address comparative constitutionalism (e.g., Jackson and Tushnet  2002; Bellamy 1996; Rosenfeld 1994). The book will be of particular interest to students of comparative politics or law, but also to anyone interested in the connections between political systems, philosophies, culture, historical development, and legal systems in the broad sense and the laws at their apex, constitutions. 

The author states that “[t]his book is as much about political systems, ideals and cultures as it is about a parochial, formal-legal appraisal of constitutional law” (p.29). His thesis is that “[c]onstitutions can serve as a model for the world only when differences are appreciated. Comparative politics is geared towards the attainment of that profound appreciation, and comparative constitutional law is an essential starting point for that process” (p.217). The book’s objective is clearly to facilitate such understanding. Central to the author’s thesis and objective is the following passage. 

Unfortunately many modern observers often tend to associate all law, including constitutional law, primarily with a series of technical rules. . . . That impression is based upon a tragic misconception. A more genuine concept of constitutional law can be expanded into large, yet interrelated, variations upon broader theses and premises. In fact, an appreciation of those themes and premises makes it possible to discern constitutional traditions in ways that are predictable, consistent, and tied to larger ideas, values, and aspects of the human experience. A constitution is an extrapolation of political, philosophical, sociological, economic, and other ideas and, furthermore, a manifestation of a higher purpose. It is the product of a general evolution of law; unless that evolution is understood and examined, critically, any constitutional evaluation is doomed to superficiality and illusion (p.4; emphasis in the original). 

Appropriately, the author begins with an introduction to some fundamental concepts and components of constitutions, especially the importance and definition of sovereignty and the role of law as both a device for safety and protection and a source of individual empowerment (pp.2-3). True to the author’s contextual approach to constitutionalism, the introductory chapter goes on to briefly set out cultural [*317] and philosophical underpinnings of Western and Eastern legal traditions, ideologies central to constitutionalism such as liberalism and Marxism, the historical evolution of the common and the civil law systems, the influence of religion, tribal law, unitary versus federal systems, public versus private law, and the contemporary prominence of rights and liberties. The discussion in this chapter provides the foundation to the author’s subsequent examination of eleven constitutional systems. 

The analysis of particular constitutional traditions appears in the following order: United States, Britain, China, Canada, India, Japan, Nigeria, France, Germany, Mexico, and Saudi Arabia. This sequence is not entirely cogent considering that the author follows the traditional comparative classification of legal systems into legal families, especially the civil-common law dichotomy. Consistent with that perspective, the logical structure would have been Britain, United States, Canada, India, Nigeria, followed by France, Germany, Mexico, Japan, China, Saudi Arabia. The first position of the United States is most likely a reflection of the author’s American background and primary intended audience. Consistent with this prominence, comparative comments made in the specific chapters mostly identify a similarity or difference to the United States, even if comparisons to other systems might have been more appropriate in substance. One example of this is the perceived American influence “derived from the role of that country’s Supreme Court” (p.169) on the establishment of the German federal Constitutional Court, even though the American Supreme Court is a general final appeals court similar to most other countries’ highest courts of appeal; whereas the German federal Constitutional Court solely exists to determine constitutional disputes and issues and is thus more readily comparable to the French Constitutional Council. 

The author’s unquestioning acceptance of the civil-common law dichotomy is unfortunate for two reasons. First, it follows the mistaken myths (as explained in Marfording 1997, 2000) that “[t]he codes [in civil law systems] and other sources of law are regarded as being complete, so previous versions or [judicial] decisions are not treated as relevant sources of legal interpretation and application within civil law systems” (p.20) and that Germany applies the “inquisitorial method of adjudication” (p. 168), which is incorrect with regard to civil proceedings. Second, even those comparative law scholars who accept the dichotomy have confined it to the area of private law, realizing its inappropriateness for constitutional law. For instance, the German “civil law system’s” constitution, establishing a federal system and entrenching individual rights’ provisions, bears a much closer resemblance to the “common law” American and Canadian constitutions than the French “civil law systems.” Criteria such as federal versus unitary, guarantee versus absence of guaranteed basic rights, existence versus absence of a specific constitutional court, republic versus monarchy, written versus unwritten constitution, are much more appropriate for constitutional law comparisons if one is inclined to classify legal systems into legal families. 

The author utilizes a strongly contextual [*318] approach in his examination of the individual constitutional traditions. Each system is explored not only in terms of the fundamental elements of its constitution, such as entrenchment, separation of powers, structure of government and parliament, federal or unitary structure, and constitutional adjudication, but also in terms of its historical evolution, political culture, underpinning philosophy, relevant religious influence, legal system as a whole, and its general court system. Each specific chapter ends on a note addressing the future of the respective system’s constitutionalism.  

As a result of this contextual emphasis and in line with the author’s political science background, there is less emphasis on the specifics of the respective constitutions than a legal scholar might desire. But astute quotations from relevant constitutional provisions might also have assisted the political science reader in understanding some of the substance discussed more easily. More detail on the respective amendment provisions in all the respective constitutions would have been especially useful, considering the importance the author places on entrenchment.  There is no detail at all on the amendment provisions in the American constitutional tradition, for instance. The author’s argument in the concluding chapter that “[a]mending formulas serve not only to elevate the status of constitutional law but to reaffirm the belief in a truly popular sovereignty, as opposed to the sovereignty of a particularly dominant political group, an electoral plurality, or, even, the ‘will of the majority’” (pp.213-214) is thus rather abstract. A full discussion on the range of constitutional amendment provisions in the countries surveyed would have been desirable at that point. For instance, how does the author’s emphasis on “truly popular sovereignty” sit with the American constitutional tradition, where it is not ordinary voters, but parliamentarians who decide on constitutional amendments (Article V)? Or, the question whether the generation at the time of the establishment of a constitution has the right to bind future generations to its will, or whether the population at the time even had an effective say on every aspect of the wording of the constitution and its entrenchment formula in particular. While constitutions are designed to last, to provide stability, and not to be subject to alteration on political whim, there is on the other hand an argument that amendments should be possible in practice, if social, political or economic changes have rendered initial constitutional provisions obsolete or inadequate. The author’s argument for “truly popular sovereignty” regarding amendments may mean that a constitution is potentially frozen in time because of the practical difficulties of achieving a successful referendum by the people for its amendment. Is that really desirable? The Australian constitution, for instance, which is not covered in this book, requires first a proposed law for constitutional alteration to be passed by an absolute majority of each House of Parliament. The proposal must then be submitted to a referendum of the voters in the Australian states and territories. For the constitutional amendment to be ratified there must then be both a majority of voters in a majority of the states as well as a nation-wide majority in favour of the amendment. In the history of attempted constitutional [*319] changes in Australia, only eight out of forty-four attempts have proven successful. Despite opinion polls showing majority support for changing the constitution from a monarchical to a republican model, the attempt for such constitutional change failed in 1999. Similarly, there is increasing demand for the express protection of individual rights in the Australian constitution in line with most modern constitutions around the world that incorporate such protection, but the likelihood of a successful referendum is infinitesimal, judging from the past record of failed attempts at constitutional change.  

Despite its shortcomings, COMPARATIVE CONSTITUTIONAL TRADITIONS provides an excellent introduction to comparative constitutional law in context. Undergraduate students of law and politics are well served by McHugh’s richly detailed analysis of historical, political, religious, cultural and philosophical factors shaping each constitutional tradition and the very diverse range of constitutional traditions examined. 

REFERENCES:

Bellamy, Richard (ed.). 1996. CONSTITUTIONALISM, DEMOCRACY AND SOVEREIGNTY: AMERICAN AND EUROPEAN PRESPECTIVES. Hants: Aldershot. 

Jackson, Vicki C., and Mark Tushnet. 2002. DEFINING THE FIELD OF COMPARATIE CONSTITUTIONAL LAW. Westport: Praeger. 

Marfording, Annette. 1997. “The Fallacy of the Classification of Legal Systems: Japan Examined.” In Veronica Taylor (ed.), ASIAN LAWS THROUGH AUSTRALIAN EYES. North Ryde: LBC Information Services.  

Marfording, Annette. 2000. Review Article: “Civil Justice In Crisis: Comparative Perspectives Of Civil Procedure, by Adrian A. S. Zuckerman.” 23 UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL 384-393. 

Rosenfeld, Michel (ed.). 1994. CONSTITUTIONALISM, IDENTITY, DIFFERENCE AND LEGITIMACY: THEORETICAL PERSPECTIVES. Durham: Duke University Press.

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Copyright 2004 by the author,
Annette Marfording
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