Course content

I. Constitution and Constitutionalism

II. Methodological Issues of Comparative Constitutional Law
III. Constitutional Review
IV. The Structure of Rights Analysis
V. Separation of Powers
VI. Human rights architecture and concept
VII. Principles of human rights interpretation and application
VIII. Litigating civil and political rights
IX. Litigating economic, social and cultural rights
X. Challenges for human rights (law)

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II. Methodological issues
A. A Nation’s Law and the risk of ethnocentrism
B. Other methodological issues

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II. Methodological issues
A. A Nation’s Law and the risk of ethnocentrism
▪ rise of comparative law by the end of the 19th century
• interest in comparative constitutional law has come in waves after important political
events
• after WW II
• after decolonization
• after the collapse of non-democratic regimes in 1970s-1990s (South America, Eastern
Europe,…)
• focus has shifted from specific topics to general themes in constitutional law around the
world

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II. Methodological issues
▪ A Nation’s Law and the risk of ethnocentrism
▪ Is comparing constitutional law possible?
• typical national law as an exercise of national sovereignty
• Montesquieu: A nation’s laws reflect or embody something distinctive about the nation’s
spirit or culture.
• David Kommers
“in some areas, such as the right to vote and to political representation, German and American
constitutional principles and theories could be blended fruitfully and seasonably to produce
more equitable balances between rights and duties within the American political order. The
day may possibly dawn when the high constitutional tribunals of the world’s major industrial
democracies will be citing each other’s opinions and drawing from each other’s jurisprudence
with increasing frequency. The academic study of comparative constitutional law may hasten
the arrival of that day.”

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II. Methodological issues
▪ A Nation’s Law and the risk of ethnocentrism
▪ Frankenberg: danger of ethnocentrism and of returning to original and prior
conceptions
• compare to travelling: like or unlike home
• non-ethnocentric abstractions are needed, otherwise the comparatist
“always returns to the original and prior conception, which is never exposed to criticism from
the vantage the new conception allows. The foreign law is conceived of as like or, unlike,
derivative or opposite. Strategic comparison conforms the antagonism between ‘capitalist’ and
‘socialist’ law; it idealizes modern law, for example, common law, as mature and rationally
superior.”

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II. Methodological issues
▪ A Nation’s Law and the risk of ethnocentrism
▪ Frankenberg: danger of ethnocentrism and of returning to original and prior
conceptions
• this requires awareness of
• problem of nominalism (same term may cover different things; e.g. federalism)
• problem of governance (difference in sources of problems; e.g. how to deal with
cultural diversity)
• problem of particularism (particular facts may determine the outcome: geography,
demography, history,…)

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Example: Federalism

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Example: federalism
▪ multi-level form of governance within a State
▪ two levels (federal – sub-federal: provinces, States, Länder)
▪ vertical distribution of powers between the two levels (subject matters)
▪ legislative, executive and/or judicial autonomy
▪ representation at the federal level
▪ conflict resolution
▪ financing mechanism

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Belgian Federalism
▪ 4 linguistic areas
Dutch

French

German

Bilingual

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Belgian Federalism
▪ 3 communities Gemeenschap, Communauté, Gemeinschaft

Flemish

French

▪ Person-related matters
▪ Culture
German
▪ Education
▪ Personal assistance
(youth, family, disabled persons,…)
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Belgian Federalism
▪ 3 regions Gewest, Région

Flemish

Walloon

▪ Location-related matters
Brussels
▪ Economy
▪ Zoning & Environment
▪ Housing & Tourism
▪ Energy …

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Belgian Federalism
Federal
Government, Parliament, Courts
Communities Regions
Cultural, educational and personal matters (health, assistance) Economic and location-based matters

Flemish Flanders
Government and Parliament
French (Fédération Wallonie-Bruxelles) Wallonia
Government and Parliament Government and Parliament
German (Ostbelgien) Brussels Capital Region
Government and Parliament Government and Parliament

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II. Methodological issues
▪ A Nation’s Law and the risk of ethnocentrism
▪ comparison possible through the functionalist approach (Bentham):
identify functions common to all constitutional systems, e.g.
✓separation of powers along three branches of government
✓protection of fundamental human rights

▪ Montesquieu’s legacy remains: emphasis that domestic politics and culture

determine how constitutional concepts are understood in national legal systems

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II. Methodological issues
▪ A Nation’s Law and the risk of ethnocentrism
▪ there may be a need to look into what comparative politics are doing
• how does government function?
• how do human rights work?
e.g. is the ban on head scarf a question of:
✓ liberal constitutionalism (religious freedom, gender equality)?
✓ republican equality?
✓ preservation of majority culture?

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II. Methodological issues
▪ A Nation’s Law and the risk of ethnocentrism
▪ Does the national level suffice?
• connection with international public law as seen above
• public international law can be made part of domestic law and override domestic
constitutional law, in the constitutional text or through court practice
• even in dualist systems, international law can be applicable, possibly raising issues of
relation between international and national interpretations
• Human Rights Act UK
• IACHR in Argentina

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II. Methodological issues
B. Other methodological issues
▪ Language
• English is not an official language everywhere
• even where authorized translations exist in English (eg BVerfG, ISC), choices were made
in their selection
• problem of nominalism
• judicial review (US) ≠ judicial review (UK)
• judicial review (US) = constitutional review (UK)
• federalism(US) ≠ federalism(B) ≠ federalism(CDN)

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II. Methodological issues
▪ Other methodological issues
▪ Units of comparison: which countries to compare?
• least different study: comparison of countries that are similar along many dimensions
• isolation of specific reasons for distinctive treatment of individual topics
• most different study: comparison between quite distinctive countries
• isolation of individual topics that are treated similarly and that may be quasi-universal
constitutional requirements

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II. Methodological issues
▪ Other methodological issues
▪ computerized research ‘Large-N-studies’
• issues with data collection
• e.g. persistence of constitution
• only explicit replacement
• what with partial amendments (Civil War Amendments US) or court interpretations
equalling constitutional amendment (New Deal in 1930s)?
• limitations of freedoms
• per article (ECHR), general provision (CDN), no explicit provision (US)
• rights through text or through interpretation
• e.g. right to carry weapons: explicit (US), implicit in right to self-realization (EE)

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II. Methodological issues
▪ Other methodological issues
▪ illustrative or edifying methods
• Kommers: blend principles and theories to produce more equitable balances (e.g. cite
each other’s decisions)
• learn how other systems deal with similar problems, to discover possibilities within one’s
own system
• have a normative nature
▪ time
• effect of time on provisions
• Constitutions are living trees
• e.g. new Constitutions of South Africa, Hungary or Poland in 1990s versus reality now

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