–Peter Cane, Emeritus Distinguished Professor, Australian National University; Honorary Professor, University of Sydney
[Editor’s Note: ICONnect is pleased to feature a symposium by the five nominees for this year’s ICON-S Book Prize. This is the fifth and final entry in the symposium.]
‘Convergent constitutional theory’ (‘CCT’), as I understand it, is largely a product of the development of ‘comparative constitutional law’ as a recognisably discrete area of academic endeavour in the couple of decades after the Fall of the Berlin Wall in 1989. CCT conceptualises a constitution as a canonical, codified written document that expresses the ‘sovereignty of the people’ and enjoys the status of ‘fundamental law’. The constitution’s fundamental status is protected by a supreme court that has power to invalidate other laws that are inconsistent or incompatible with the constitution, and to strike down decisions and actions taken in pursuance of invalid laws. A constitution contains a ‘bill of rights’. A constitution conceptualises governmental power as being of three basic types – legislative, executive and judicial – and allocates each type of power to a distinct institution – the legislature, the executive and the judiciary, respectively – that characteristically exercises that type of power. Although CCT recognises administrative power as constitutional, it is concerned primarily with legislative and judicial power. Furthermore, the law of administration (‘administrative law’) is generally conceptualised as being sub-constitutional and non-fundamental.
Theorists have also developed a concept of ‘constitutionalism’. At its broadest and thinnest, constitutionalism refers simply to government in accordance with a constitution. However, mainstream CCT understands constitutionalism as underpinned, as well, by ‘liberal democratic’ values such as competition for political office in ‘free and fair’ elections under a system of universal adult suffrage; ‘judicial independence’, ‘separation of powers’ and ‘the rule of law’. Such values, in conjunction with those that underlie the CCT concept of a ‘constitution’, underpin the ideology of CCT.
In the past 30 years or so, CCT has become a sort of lingua franca of the sub-discipline of comparative constitutional law. A negative consequence of this development has been a narrowing and distortion of constitutional vision. Through the lens of CCT, governmental systems that deviate from the CCT paradigms of constitutional law and constitutionalism may be described as ‘outliers’ or, even, as lacking a constitution, or being devoid of constitutionalism. In other words, systems tend to be understood in terms of the extent to which they conform to or deviate from CCT. The significance of such an approach depends partly on the reason for comparing systems. For an observer who is personally committed to CCT values and ideology, the aim of the exercise may be to bring deviant systems into closer conformity with the paradigm. Such an observer would not primarily be interested in understanding a system as it is but rather in identifying deviations from the paradigm with a view to their elimination. Such an approach is methodologically robust regardless of its normative attractiveness. However, the potential success of such a project might depend crucially on understanding the system as it is. An analogy makes the point: the best car repairers are likely to be those who understand most about how the vehicle works and, so, how best to get it into full working order.
Much work in CCT pursues such a reparative project whether explicitly or implicitly. My concern in The Distorting Lens is with the different project of attempting to understand, analyse and explain constitutional systems, not in terms of their relationship to a paradigm but in their own terms. The basic methodological move this entails is to conceptualise systems that do not conform to the CCT paradigm not as ‘outliers’ or ‘deviants’ but as ‘alternatives’, embodying understandings of ‘constitution’ and ‘constitutionalism’ different from their CCT counterparts. The main aim of this exercise is to understand and explain difference rather than to iron it out. In this way of thinking, CCT embodies one amongst various understandings of a constitution and of constitutionalism. Even if such an analytical project is not considered worth pursuing for its own sake, it may be valued as a necessary condition of effective ‘constitutional repair’.
From this methodological starting point, The Distorting Lens sets out to identify various respects in which, and reasons why, viewing constitutional systems through a CCT lens hinders understanding, analysis and explanation (‘UAE’ as I dub it in the book) of the ways in which and the reasons why systems that, to a greater or lesser extent, do not conform to the CCT paradigm may, nevertheless be considered to have a constitution and to exemplify constitutionalism.
The birth of the idea of a constitution as a codified written document can be traced to the period of the American and French revolutions in the late 18th century. Because of its relative brevity and longevity, and because of the economic, political and cultural dominance of the US in the past century, the US Constitution has become a sort of paradigm of a codified constitution. Today, very few systems formally maintain purely ‘uncodified’ constitutions, consisting of norms derived from various different sources – statute, judicial law-making and political custom – that regulate political and governmental power. However, I argue that CCT’s focus on codified constitutional norms obscures the reality, ubiquity and significance of ‘uncodified’ norms in all constitutional systems. So, I suggest reversing the ‘order of analytical priority’ between the codified and the uncodified by thinking of a codified constitution as a specific intervention in a society’s ongoing normative life that cannot be fully understood in isolation from uncodified constitutional norms. A corollary of this approach is that a codified constitution is not fundamental law. This means it is neither the formal source of all law in the system nor, even, of all the system’s constitutional law. Rather, a codified constitution is a species of law with distinctive characteristics.
The idea that a codified constitution is an expression of ‘the sovereignty of the People’ is also analytically unhelpful. Empirically, a codified constitution may give expression to the sovereignty of the legislature, or of a political party such as the Chinese Communist Party or even of the Constitution itself. In its historical context, it is at least debatable whether the Australian (codified) Constitution, for instance, is best understood as an expression of popular sovereignty. In the context of the 17th and 18th centuries, popular sovereignty may be understood as a legitimising ‘myth’, designed to reconcile the mass of the people to the exercise of governmental power by a political elite in a pre-democratic system. Indeed, democratisation might be thought to have rendered the idea redundant. This helps to explain, perhaps, why codified constitutions have come to be thought of by many as bulwarks against ‘democratic backsliding’ even when, as in the case of the US Constitution itself, the codified document was not designed to create a democratic system of government, and when most of the ‘law of democracy’ is uncodified.
A common thread here is that significant elements of CCT are rooted in the past, in a social, political and economic world that no longer exists. This insight helps to explain, for instance, why CCT is much more concerned with legislatures and judicial review of legislation than with executives and judicial review of administration, despite the reversal of the relative political importance of the two institutions in the past two centuries. It also enables us to appreciate why the US Bill of Rights – which was enacted as a set of political concessions to anti-Federalists – looks and operates so differently than 21st-century regimes of rights-protection. Indeed, even the contemporary concept of rights is very different from that of the US Founders.
Reflecting the fact that the US Constitution (like many codified constitutions) is mainly concerned with the architecture, as opposed to the tasks, of government, the bulk of The Distorting Lens in concerned with separation of powers, both horizontally within tiers of government and vertically between tiers of government. The dominant approach to separation of powers vividly illustrates all the analytical weaknesses of CCT: it is deeply rooted in 17th and 18th century British history and, more broadly, in European culture; and it marginalises or dismisses other cultural traditions. The ‘powers’ with which it is concerned are very difficult to pin down and to distinguish conceptually. The link it forges between powers and institutions is of very little contemporary salience. Its obsession with a trinity blinds it to numerous other governmental functions and powers. I illustrate these failings by reference to one of the most important constitutional systems in the modern world – that of China. My aim, it must be emphasised, is not either to condemn or praise Chinese constitutional arrangements but rather to understand the political logic of the system in which they are embedded. Not only does Chinese constitutionalism look very different from CCT constitutionalism, but the Chinese government presents it as an alternative to rather than a variant of (still less, a deviation from) CCT principles even though, ironically, it does this in terms of what the Chinese system is not – it is not a system of ‘separation of powers’ – rather than by reference its own governmental structure, internal political logic and deeply-entrenched cultural associations.
For analytical purposes, I suggest going back to the basic idea – of which CCT separation of powers is one manifestation and outworking – that power corrupts and absolute power corrupts absolutely. All constitutional systems – whether codified or not – are designed, in part, to distribute and control public power in such a way as to avoid tyrannical over-concentration one the one hand, and anarchic diffusion and disaggregation on the other. In fact, analysis and comparison in terms of the degree and ways in which power is distributed and controlled is as useful for understanding systems that purport to operationalise CCT’s separation of powers, as it is necessary for understanding systems that repudiate the theory, because separation itself comes in many different shapes, sizes and colours.
I should stress that my objections to CCT are not based on its theoretical character. Comparative analysis requires generalisation and abstraction from particulars. In this book, I, myself, have proposed, for instance, a theoretical account of a constitution very different from the CCT account; and I have proposed a theoretical approach to governmental structure very different from CCT’s theory of separation of powers. Nor do I object to CCT on the ground that it is ideologically loaded with ideas of liberal and democratic individualism. All constitutional theories are value-laden. The point is that for analytical purposes, the values underpinning any particular constitutional theory should be understood as characteristics of that theory, themselves just as worthy and in need of analysis and explanation as the structural and other element those values support. I have no objection to normative projects in comparative law; however, it is important for the theorist to avoid dressing up normative claims as analytical. My objections to CCT, in summary, are that it is anachronistic and outdated, that it marginalises other approaches, and that it is often unsufficiently alert to its cultural and normative particularity. These defects, I argue, undermine its utility and value as a starting point for comparative understanding, analysis and explanation of constitutional systems.
Suggested citation: Peter Cane, The Distorting Lens of Convergent Constitutional Theory, Int’l J. Const. L. Blog, Jul. 1, 2026, at: http://www.iconnectblog.com/the-distorting-lens-of-convergent-constitutional-theory/