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Remembrance of Things Past (I·CON 13, Issue 1: Editorial)

I have invited Ran Hirschl, member of our Editorial Board, to write the Editorial for this issue. His contribution follows below.

“Remembrance of Things Past”

A couple of years ago in these pages, I published an extended Editorial outlining the analytical and methodological need to move beyond a text- or court-centric comparative constitutional law to a more holistic comparative constitutional studies. In this Editorial, I wish to address another curious feature of the contemporary renaissance of comparative constitutional inquiries: its exclusive focus on the “current” and the “new” with little or no attention to the field’s rich and captivating intellectual history.

Contemporary discussions in comparative constitutional law, and comparative public law more generally, often proceed as if there is no past, only present and future. Many of the debates that take place within the field are presented as grounded in ideas or situations that are novel and hitherto unknown to mankind. The world, however, was created before 1945, and even before 1787. The reality is that critical encounters with the constitutive laws of others have been taking place since well before the late 18th century. Many of the contemporary debates in comparative constitutional law have early equivalents, some of which date back over two millennia.[i] Granted, some of the specifics at play are indeed new. The migration of constitutional ideas, the ascendance of constitutional guarantees of rights and entitlements, the rise of a new transnational legal order and judicial class, and the corresponding decrease in the autonomy of “Westphalian” constitutionalism are among the developments that have inspired debates in the last few decades. And it is also true, as I have argued elsewhere, that the rapid development of information technology and the tremendous improvement in the quality and accessibility of data sources on constitutional systems and jurisprudence worldwide—have already had an effect on the way comparative constitutional inquiries are pursued. Taken as a whole, however, the history of engagement with the constitutive laws of others is much longer and richer than is reflected in the field’s current renaissance.

“It is said in the Talmud (Tractate Sanhedrin 23a),” began Shmuel Yosef Agnon’s (winner of the Nobel Prize in Literature, 1966) Nobel Banquet speech, “that ‘In Jerusalem, the men of distinction did not sit down to dine in company until they knew who their companions were to be’; so I will now tell you who am I, whom you have agreed to have at your table.” Similarly, too many of us comparativists do not fully appreciate the rich history of our dining companion—namely, the field we profess to be our intellectual calling. Nowhere is this more obvious than in the oversight of and disinterest in the seminal work of the field’s early giants, most of whom are well known to political theorists and historians of ideas, though much less so to comparative constitutionalists.

No area of inquiry that is confident about its identity and optimistic about its future can afford to overlook its past. And so it has become a near-cliché to acknowledge in passing that Plato compared the laws of the Greek city-states, and on the basis of this comparison constructed what he deemed the ideal constitution. Aristotle, in Politics, likewise compared the constitutions of various city-states, and introduced a distinction between a polity’s substantive constitution and its formal one. Then there is the obvious reference to Montesquieu’s seminal De l’esprit des lois (1748). But the pioneering comparative endeavors of other daring intellectuals in the entire pre-Montesquieu era, and to a large extent after it, are seldom mentioned, let alone seriously addressed. Despite the field’s penchant for the contemporary and the current, it is time to overcome this puzzling amnesia regarding its unexcavated past. Through an extensive exploration of comparative constitutional endeavors past and present, near and far, we can see more clearly how attitudes towards engagement with the constitutive laws of others reflect tensions between particularism and universalism as well as competing visions of who ‘we’ are as a political community.

Consider the comparative work of Jean Bodin (1530-1596), groundbreaking in many respects, yet largely unknown to today’s comparative constitutional scholars. Bodin was, arguably, the chief figure of the late 16th-century intellectual quest in France to challenge the exclusive authority of Roman law and to build a new concept of sovereignty through a comparative public law inquiry.[ii] In 1566, he published Methodus ad facilem historiarum cognitionem (Method for the Easy Comprehension of History), which included “a very self-conscious effort to apply a comparative method to public law.”[iii] Bodin forcefully states the bookʼs premise at the outset: “I shall not mention the absurdity of wishing to draw conclusions about universal law from the laws of Rome . . . [T]he only way to arrange the laws and govern the state . . . is to collect all the laws of all or the most famous commonwealths, to compare them and derive the best variety.”[iv] The 6th volume of Bodin’s Six livres de la république (Six Books of the Commonwealth, 1576) is one of the most impressive comparative public law books I have read in recent years. It holds over 130 pages of an extraordinarily detailed comparative account of the basic laws and what we would today call the constitutional foundations of ancient empires, medieval polities, and the kingdoms, grand duchies, and city-states of his time on a variety of public law matters such as citizenship, municipal law, taxation, jurisdiction and sovereignty.

The scope of Bodin’s comparative research (recall, this is the 16th century!) is impressive. Notably, his research is not confined to the “usual suspect” legal systems of his time. In addition to probing into the formulation of sovereignty in French law, Roman law, canon law, and ancient Egyptian and Greek law, Six livres includes careful reference to ancient civilizations, such as those of the Assyrians, Phoenicians and Persians, as well as to the laws of 16th-century Russia, Poland and Scandinavia. Perhaps the most far-reaching innovation in Bodin’s work is the comparative dimension of his study. Under the “aristocratic state” category, to pick one example, Bodin presents a concise account of all available data about the size, composition and status of the ruling organs of Pharsalia, Sparta, Epidaurus, Thebes, Rhodes, Genoa, Geneva, Zurich, Basel, Berne, Lucerne, Fribourg, Venice, Ragusa, Lucca, the German Empire, and then finally the political system of Nuremburg considered as representative of Augsburg, Worms, and other independent German cities.[v] The foremost argument is that the laws of a polity should not be imposed on it from the outside or applied to it in a mechanical, insensible fashion (think of the anti-Roman law project). In short, comparative public law as a systematic inquiry into the constitutive laws of others is certainly not a 20th-century invention. It was born in mid-16th-century France, and Jean Bodin may legitimately be considered among its founding fathers. Bodin is not only “the greatest theorist of non-democratic constitutional restraints, that is, of constitutional restraints freely adopted by a powerful monarch power.”[vi] He is also among the greatest scholars of comparative public law, contemplating these issues nearly two centuries prior to Montesquieu.

The rapidly expanding intellectual and geographical horizons of early to mid-17th-century Europe stirred interest among the leading thinkers of the time in the laws of other nations. A variety of theoretical strands emerged. Francis Bacon, the famous philosopher, jurist and statesman, and a key figure in the scientific revolution of the early modern age, suggested in 1623 that a system of national law as the object of scholarly judgment could not at the same time provide the standard of judgment. Advocating a scientific (or unbiased) approach to the study of law, Bacon argued that a lawyer should free himself of the bonds of his own national system in order to objectively evaluate its merits and drawbacks.[vii] In his opinion, comparative assessment driven by a cosmopolitan outlook is not merely a normatively preferable option, but an analytically superior one. The only scientific way to assess a given legal system is by an international or exogenous standard. (Even liberal constitutionalists in the United States, let alone conservative right-wingers, would find Bacon’s argument about the necessity of a cosmopolitan baseline for legal comparison difficult to accept.) A related strand of comparative thought was driven by an early encyclopedist impulse. In 1667, Gottfried Wilhelm Leibniz envisioned a utopian theatrum legale mundi—an imagined repository that would include the entire corpus of the laws of all peoples at all places and in all times. This, Leibniz speculated, would be the driving engine of comparative legal inquiry and would allow for the discovery or articulation of universal principles of law. A third strand of comparative thought at the time was driven by a quest to formulate what would today be labeled as international public law. The Age of Discovery, and in particular the Dutch Golden Age of the mid-17th century, laid the foundations of modern international trade, colonialism, and exploitation of foreign lands, and the evolving political and economic interests of the European superpowers of the time intensified their quest to dominate the high seas. A need for some form of supranational law emerged. The work of Hugo Grotius, most notably his classic On the Law of War and Peace (1625), compared various systems of national law in an attempt to lay down the basics of an international legal framework. Samuel von Pufendorf’s Two Books of the Elements of Universal Jurisprudence (1661) and On the Law of Nature and of Nations (1672) famously followed this line of inquiry.

An unsung pioneer of comparative public law scholarship of that era was John Selden (1584–1654). Known for his contributions as a political theorist and British parliamentarian as well as to the international law of the sea, Selden’s immense comparative scholarship on the constitutive laws of others, most notably on Jewish law, has remained largely unexplored. He was considered, even by his contemporaries, as one of the most erudite people of his time. Selden was described by notable luminaries as “the glory of the English nation” (Hugo Grotius), “Monarch in letters” (Ben Jonson), and “the chief of learned men reputed in this land” (John Milton). Selden devoted half his adult life to the study of foreign law and international law.[viii] For roughly 25 years, from the late 1620s to the early 1650s, he meticulously studied the foundational principles of the Jewish legal tradition as a potential source for a basic set of universal legal norms applicable to all mankind.

Unlike major luminaries of his time who referred to the laws of others in passing and whose interest in the subject was incidental to their interest in the philosophical foundations of scientific inquiry (Leibniz), or in what today would be designated as customary international law (e.g. Hugo Grotius and Samuel von Pufendorf), Selden was genuinely interested in the law of others as the principal subject of his inquiry. Throughout his explorations of Jewish law, and in particular of the existence of the Noachide precepts within Jewish law as an effective illustration of the coexistence of universal and particular law, Selden juxtaposes and compares different traditions—the Talmudic literature to Roman law as well as to norms in French, Spanish, English and canon law—and regularly points out similarities and differences between them. Seldenʼs work, most notably his grand opus De Iure Naturali et Gentium Juxta Desciplinam Ebraeorum (On Natural Law and Nations, according to the Teaching of the Jews, 1640), is thus a genuine and truly impressive study of comparative public law, published roughly a century prior to Montesquieuʼs work.

Along with the grand political transformations of the mid-17th century to the early 18th century (consider: Spinoza, Locke or the Glorious Revolution), there emerged an interest in the systematic study of constitutions across polities. This is manifested in Montesquieu’s satirical take in Lettres persanes (Persian Letters, 1721) on the laws and government of Louis XVI’s France, which he considers through the “outsider” observations of two fictitious Persian merchants, Usbec and Rica, and a few years later in Jonathan Swift’s fantastic odyssey Gulliver’s Travels (1726), which considers the laws and governments of Gulliver’s imagined destinations. On the more empirical side, a lesser-known author, German Gottfried Achenwall of the University of Göttingen, published Staatsverfassung der Europäischen Reiche im Grundrisse (Constitution of the Present Leading European States, 1749). In this pioneering, yet largely unknown book, Achenwall provided a comprehensive view of the constitutional structures of various European countries (Spain, Portugal, France, Great Britain, the Netherlands, Russia, Denmark and Sweden), described their social, legal and political order, examined the material condition of their agriculture, industries and commerce, and supported his analysis with descriptive statistical information and illustrations (Achenwall is also considered one of the founders of modern statistics).

The publication of Montesquieu’s monumental De l’esprit des lois (The Spirit of the Laws, 1748) is indisputably among—if not the—defining moment in the history of comparative public law. Montesquieu’s foundational strategy of unearthing links between law and society across cultures has inspired an impressive tradition of comparative scholarship in the social sciences as well as legal scholarship. The history of scholarly engagements with the constitutive laws of others did not stop there. However, as with the pre-Montesquieu era, the late 18th and 19th century giants of comparative constitutional thought are known primarily to political theorists and historians of ideas, but are seldom referenced or studied closely by “here and now” comparative constitutionalists.

Early experiments with democratic governance took place in 18th-century Sweden (the Age of Liberty), and are manifested in the Corsican Constitution (1765), which was inspired by the writings of Jean-Jacques Rousseau. This set the stage for the adoption of the U.S. Constitution in 1789, the Polish Constitution in 1791, the post-revolution constitutions in France, the Spanish Constitution of Cádiz (1812), the Constitution of Norway in 1814, and a host of independence constitutions adopted in Latin America from the 1810s to the 1830s. Inevitably, this era was a heyday of constitutional innovation, from the powerful ideas of America’s Founding Fathers in the late 18th century, to the innovative thought of Henri-Benjamin Constant in the early 19th century (e.g. Constant’s distinction between ancient liberty and modern liberty, or his notion of constitutional monarchy in which royal power was conceptualized as that of a moderating authority, balancing and restraining the excesses of the three classic powers). Constant’s ideas were contemplated and eventually applied in Portugal (1822), Brazil (1824), France (the Charter of 1830, which essentially removed the king’s power to instigate legislation), and Sardinia (1848, preceding the Constitution of Italy, 1861).

Perhaps the best illustration of the proximity of scholarly ideas and political agendas in comparative constitutional thought is provided by the constitutional thought of Simón Bolívar, the great liberator of Spanish South America; he was probably the first political leader to openly draw lessons from comparative constitutional law, while at the same time expressing serious reservations about the wisdom of allowing the constitutional law of other states to shape domestic law. Selective reference to examples from overseas was an essential aspect of Bolívar’s development of a suitable constitutional platform for Latin America. On the one hand, Bolívar—an erudite and widely traveled leader—venerated British, French and American constitutional thought; and, on the other, he frequently cautioned against the blanket transplantation of grand foreign ideas that were ill suited to the social conditions of Latin America.

A good illustration of Bolívar’s ambivalence toward comparative constitutional wisdom is his famous Angostura Address (February 15, 1819), given on the occasion of the gathering of the Congress of Angostura (today’s Ciudad Bolívar), Venezuela’s second legislative congress. “Passing from ancient to modern times,” he states, “we find England and France arousing the admiration of all nations and offering eloquent lessons on every aspect of government.”[ix] He continues: “Let us not forget the lessons of experience; let the schools of Greece, Rome, France, England, and America instruct us in the difficult science of creating and preserving nations with laws that are appropriate, just, legitimate, and above all practical . . . However, for all its perfection, I am far from recommending servile imitation of it.”[x] With respect to federalism, Bolívar has this to say: “I should say that however successful this form of government proved for North America, it never entered my mind to compare the situation and nature of two states as diametrically different as English America and Spanish America. Would not it be difficult to apply to Spain England’s political, civil and religious Charter of Liberties? Well, it is even more difficult to adapt the laws of North America to Venezuela.”[xi] Referring directly to Montesquieu’s main thesis, Bolívar continues: “Do we not read in the Spirit of the Laws that [laws] must be suitable for the country for which they are written? That it is an astonishing coincidence for the laws of one nation to be applicable to another? That they must take into account the physical aspect of the country, its climate, the nature of its terrain, its location, size and the way of life of its people? That they must reflect the degree of freedom that the constitution can support, the religion of the inhabitants as well as their inclinations, their standard of living, their number, their commerce, their customs and their character? This then is the code we should consult, not the one written for Washington!”[xii] These words exhibit a classic “compare and contrast” approach by the founding father of “Bolivarian” constitutionalism. Not everything, then, is new under the sun.

And lest we forget, closer to our times we find the original comparative thought of Georg Jellinek, James Bryce, and other early 20th-century comparativists, the contributions of Boris Mirkine-Guetzévitch—director of the Paris Institute of Comparative Law during the interwar period and pioneer of comparative constitutional law scholarship in France—or the tremendous intellectual creativity that was introduced into and blossomed out of post-colonial constitutional thought in the so-called “global south.” Returning then to Agnon’s invitation, we comparative constitutionalists have long been seated among fascinating and erudite companions; failing to make their acquaintance, we may wind up dining alone, deprived of so much enriching conversation.

Conclusion

“Can you see anything?” asked Lord Carnarvon (British patron), upon witnessing Howard Carter’s (archaeologist) first step into Tutankhamun’s tomb, Valley of the Kings, Egypt on November 26, 1922. “Yes, wonderful things!” replied the stunned Carter. Contemporary comparativists are well advised to follow suit, for many of the past treasures of comparative public law are yet to be excavated and brought to light.

The near-exclusive emphasis on contemporary “headline” matters is understandable yet misguided. First, a field with no past lacks a solid intellectual identity and analytical mainstay. Second, the field’s presumption of all-out novelty, of an entire comparative enterprise de-novo is in some respects fictional. Purportedly new challenges such as the fundamental tension between forces of legal convergence and enduring patterns of divergence have numerous early equivalents that occupied thinkers, jurists and rulers for centuries. Third, and most importantly, conceptual history is potentially a powerful analytical and methodological tool for understanding the origins of comparative public law as we know it, for explaining the field’s current renaissance, as well as for tracing how and why the constitutive laws of others have been selectively engaged, endorsed or rejected by communities, polities and empires through the ages. It may help drive home the message that comparative constitutionalism is more than an emerging field of legal inquiry. It is a tool for understanding the political and the social condition itself.

Ran Hirschl*

Second ICON·S conference

The second conference of the International Society of Public Law (ICON·S) will be held in New York, at the New York University School of Law, on July 1–3, 2015. The conference will explore the theme of ‘Public Law in an Uncertain World’ in a number of plenary sessions and parallel panels. More information is available on the ICON·S website.

In this issue

We open this issue with an I.CON Keynote address by Justice Dieter Grimm on the role of fundamental rights in Germany. Three articles follow, each addressing a different set of problems in the field of international constitutional law. In the first article, Arthur Dyevre calls for an empirical assessment of judicial review. Evaluating two different rationales—the Principle-Agent Model and the Trustee Model—Dyevre argues that the latter model provides a better picture of how judicial review works. In the following article, Yan Lin considers China’s constitutional evolution over the past three decades and argues that legislation has been instrumental in this evolution. Finally, Thounis Roux discusses the comparative implications of U.S. Supreme Court decision-making models and constructs a comparative typology of constitutional courts.

The issue continues with a symposium entitled “Constitutionalism in Central and Eastern Europe.” After a short introduction by Michel Rosenfeld, Wojciech Sadurski and Roberto Toniatti, seven authors reflect on what they consider to be the main constitutional phenomena in their countries and in the region.

JHHW

[i] See, generally, Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (2014). 

[ii] Other French “early comparativists” of that period are Éguinaire-François Baron, François Baudouin, and François Hotman.

[iii] See, Donald Kelley, Civil Science in the Renaissance: Jurisprudence in the French Manner, 2 History of European Ideas 261–76, 270 (1981).

[iv] See, Julian Franklin, Jean Bodin and the Sixteenth Century Revolution in the Methodology of Law and History 69-70 (1963).

[v] Id., at 76.

[vi] Stephen Holmes, Constitutions and Constitutionalism, in Michel Rosenfeld and András Sajó, eds., The Oxford Handbook of Comparative Constitutional Law 193 (2012).

[vii] Francis Bacon, De dignitate et augmentis scientiarum (1623).

[viii] See Jason Rosenblatt, Renaissance England’s Chief Rabbi: John Selden (2006). See also, G. J. Toomer, John Selden: A Life in Scholarship (2009).

[ix] Simón Bolívar, “The Angostura Address” (Feb. 15, 1819), in David Bushnell, El Libertador: Writings of Simón Bolívar 41 (2003).

[x] Id., at 42.

[xi] Id., at 37.

[xii] Id.

* Canada Research Chair, Professor of Political Science & Law, University of Toronto. Email: ran.hirschl@utoronto.ca.I am grateful to Joseph Weiler for the invitation to write this Editorial. I thank Ayelet Shachar and Marinka Yossiffon for their excellent comments and suggestions.

 

 

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Published on May 28, 2015
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