Towards Global Constitutional Gene Pool

Only available on StudyMode
  • Download(s) : 98
  • Published : December 6, 2012
Open Document
Text Preview
Keynote Speech

Towards a Global Constitutional Gene Pool
Cheryl Saunders*
ABSTRACT
This essay aims to develop the methodology of comparative constitutional law in a way that draws more comprehensively on world constitutional experience. It proceeds in two stages. The first part identifies key methodological challenges for comparative constitutional law, drawing on the literature of comparative law, while taking account of the distinctive character of constitutional law. The challenges examined here are the dichotomy between similarity and difference; the approach to the task of comparison; taxonomy; the impact of culture; and pluralism. The second part of the argument considers the impact on comparative constitutional method of the conditions in which Constitutions operate in the early 21st century, including internationalisation, globalisation and advances in information technology. This part of the essay aims to show that, while there are considerable contemporary pressures for convergence, with implications for comparative method, other forces foster difference and pluralism, creating new methodological challenges. The essay concludes with a series of propositions for the methodology of comparative constitutional law, as a platform for further research and dialogue. Keywords: Global Constitutionalism, Constitutional Law, Comparative Constitutional Law, Comparative Method, Pluralism, Globalisation, Internationalisation * Laureate Professor, University of Melbourne. Email: c.saunders@unimelb.edu.au. This paper was originally presented as a key-note address to the Third Asian Forum for Constitutional Law at the National Taiwan University Law School in September 2009. Versions of it have since been presented to an International Round Table on Constitutional Law in Seoul, Korea in November 2009 and at the 21st Anniversary Conference of the Centre for Comparative Constitutional Studies at Melbourne Law School in late November 2009. I am grateful for the comments that I received from participants on all three occasions. I also express my thanks for research assistance from the Law Research Service of the Law Library of Melbourne Law School.

1

2

National Taiwan University Law Review

[Vol. 4: 3

CONTENTS I. INTRODUCTION ........................................................................................ 3

II. IS COMPARATIVE CONSTITUTIONAL LAW DIFFERENT? ........................... 5 A. Methodological Problems of Comparative Law................................ 5 B. Differences Between Constitutional and Private Law....................... 8 C. Comparative Constitutional Method ............................................... 12 III. CONDITIONS OF CONSTITUTIONAL MODERNITY ................................... 16 IV. IMPACT OF THE PRESENT ON CONSTITUTIONAL COMPARISON .............. 21 V. MAXIMISING THE GENE POOL ............................................................... 27 REFERENCES ................................................................................................. 31

2009]

Towards a Global Constitutional Gene Pool

3

I. INTRODUCTION The purpose of this essay is to explore how the discipline of comparative constitutional law might be developed so as to take full account of the breadth of world constitutional experience, thus maximising the possibilities of what might be considered to be a global constitutional gene pool. In doing so, I make two assumptions. One, which seems obvious enough to need little justification, is that the discipline does not presently do so. Much of the discourse of comparative constitutional law focuses on the established constitutional systems of North America and Europe and a few outrider states with similar arrangements, based on similar assumptions. These are the progenitors of many of the current conceptions of world constitutionalism. They are deeply interesting subjects of comparative study in their own right: dynamic, despite their relative...
tracking img