Can There be Classics of Comparative Constitutional Law Theory?

—Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco

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In a paper talk I gave late last month I got advice that had me thinking about the question above.

“Prioritize ideas as opposed to authors or even author’s books,” said the commenter.

The paper was both a response to Rosalind Dixon’s forthcoming book Responsive Judicial Review (RJR) and the beginnings of a comparative constitutional law theory inspired by my engagement with her ideas. Dixon considers RJR neo-Elyian because it updates John Hart Ely’s vision of courts as correctors of deficiencies in the democratic process. One of my arguments is that the book is also profoundly anti-Elyian because it advocates noninterpretivism, an approach to judicial review Ely had pointedly rejected. Naturally I dwelled on Ely’s works (prominently Democracy and Distrust[1]) as much as on RJR. But more than this, in developing my theory I discussed other books, including Montesquieu’s The Spirit of the Laws, Bruce Ackerman’s We the People 1, and Jack Balkin’s Living Originalism.

“I know that these are major theorists and you are responding to them,” acknowledged the commenter, but, again, “prioritize ideas as opposed to authors.”

Imagine if this comment had been given to an essay on political theory or analytical jurisprudence. Political theory routinely answers its central question ‘How can societies best govern themselves?’ by conversing with authors such as Machiavelli, Hobbes, Locke, and Rawls. Analytical jurisprudence, too, routinely answers its central question ‘What is Law?’ by conversing with authors such as Austin, Kelsen, Hart, and Dworkin. The response might be something like ‘These authors wrote classics in the field. Taking their thoughts seriously throws instructive light on the inquiry.’

A classic, says Hans-Georg Gadamer (mentioning Plato, Aristotle, Leibniz, Kant, and Hegel), is a timeless work.[2] It is a classic because discriminating readers across generations have time and again recognized its value. What makes it valuable is the horizon we acquire through it, enabling us “to look beyond what is close at hand—not in order to look away from it but to see it better, within a larger whole and in truer proportion.”[3] The horizon, in short, improves our understanding of a subject. We acquire this horizon because the classic work wends its way through an inquiry or story with surprising questions, frames, themes, arguments, and answers which challenge and perhaps change our own premises and opinions. While we may not completely agree with a classic, we take it seriously because its exalted place in our tradition recommends its reasoning or narrative as possibly better informed and considered than ours.

There in the fraught phrase ‘in our tradition’ lies the rub. The soundness of a theory—whether moral, political, legal, constitutional, or whatnot—is largely measured by how well it accords with the intuitions, institutions, practices, and beliefs of either its audience or its explicandum. Hence it is generally assumed that a constitutional law theory should explain and justify canonical cases and refute anticanonical ones.[4] The trouble with this for comparative constitutional studies is that most books on constitutional law theory that are old enough to obtain the time-tested, transgenerational quality of a classic focus on single jurisdictions, and legal systems each have their own revered and repudiated constitutional precedents, not to mention their own written and unwritten constitutions. Democracy and Distrust, perhaps the most consulted constitutional law theory book since its publication,[5] theorizes judicial review in the United States. How can it become a classic for another jurisdiction, say, the Philippines, whose written constitution is different though derived from the U.S. Constitution, and where American case law is at best only persuasive authority?[6] How can it become a classic of comparative constitutional law theory, where the U.S. is but a single though influential jurisdiction of inquiry?

It can, I argue, because it could be placed within a wider, transnational tradition of liberal democratic constitutionalism. Democracy and Distrust explores a central question for any liberal constitutional democracy: ‘How can judicial review be reconciled with democratic rule?’ Since its publication four decades ago in 1980 constitutional law scholars have recognized the immense value of engaging with it. Many comparative constitutional law scholars today, notably comparative political process theorists like Dixon, continue to do so.[7]

Democracy and Distrust shares with comparative constitutional law scholarship a particular idiom of inquiry, that is, a conceptual system for redescribing a practice in terms that are different from how it is usually understood.[8] The concern of its theory of judicial review is different from that of judges and other legal practitioners. It is to investigate the conditions, tensions, character, etc. of constitutional arrangements, not to engage in the practice of constitutional law.[9] As such the concepts it both borrows (e.g., democracy, political process, open-ended constitutional clauses) and fashions (e.g., clause-bound interpretivism; noninterpretivism; participation-oriented, representation-reinforcing approach to judicial review) can be used to redescribe constitutional systems other than that of the United States. The understanding that single-jurisdiction works like Democracy and Distrust enables for comparative constitutional studies is analogous to anthropological understanding; it offers a conceptual toolbox which allows us to place different constitutional arrangements side by side so that they may each illuminate the others.[10]

These considerations explain why I think certain single-jurisdiction works like Democracy and Distrust can be considered classics of comparative constitutional law theory. But then again, these are but exploratory thoughts spurred by a recent remark. The title above is a genuine question, and this sketch of an essay an opening salvo.

Suggested citation: Bryan Dennis G. Tiojanco, Can There be Classics of Comparative Constitutional Law Theory? Int’l J. Const. L. Blog, Mar. 16, 2022, at: http://www.iconnectblog.com/2022/03/can-there-be-classics-of-comparative-constitutional-law-theory/

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[1] John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980)

[2] Hans-Georg Gadamer, Truth and Method xxi & 290 (Joel Weinsheimer & Donald Marshall trs., 2^nd rev. ed., 2004)

[3] Id. at 304

[4] J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law,111 Harv. L. Rev. 964, 1016–1017 (1998)

[5] See Fred Shapiro, The Most-Cited Legal books Published Since 1978, 29 J. Legal Stud. 397, 401 (2000). But see Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat’l L. 73 (2008), suggesting that Robert Alexy, A Theory of Constitutional Rights (Julian Rivers tr., 2010), another single-jurisdiction work (Germany), might hold this distinction.

[6] See Bryan Tiojanco & Ronald San Juan, Importing Proportionality through Legislation: A Philippine Experiment, in Proportionality in Asia 252–254 (Po Jen Yap ed., 2020)

[7] E.g. Stephen Gardbaum, Comparative political process theory, 18 Int’l J. Const. L. 1429 (2020)

[8] Michael Oakeshott, On Human Conduct 15–19 (1990)

[9] Id. at 26; & Martin Loughlin, Constitutional Theory: A 25^th Anniversary Essay,25 Oxf. J. Legal Stud. 183, 186 (2005)

[10] Cf. Clifford Geertz, Local knowledge: further essays in interpretive anthropologyxi, 55–70 (2000)