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This article was first published in the National Taiwan University Law
Review, Volume 4, Number 33, 2009
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
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 stability and sufficiently distinctive from each
other to make comparison thought-provoking.
Much of the most influential
constitutional scholarship emanates from these parts of the world.
One
consequence of the concentration on North America and Europe is that
constitutional law and practice in other regions, where the
majority of states
is located, is not factored into mainstream comparative constitutional law and
is, in effect, marginalised. Marginalisation
may take a variety of forms:
overlooking the constitutional experience of particular states and regions;
assuming their effective
similarity with western constitutional systems;
reserving them for specialist study by those with anthropological or
sociological
interests and skills. To a greater or lesser degree, all other
regions are affected in one or more of these ways: Africa, South America,
Scandinavia, the Middle East, and the Pacific.
The marginalisation of
regional constitutional experience takes a distinctive form in relation to Asia,
however. Asia is one of the
most diverse regions of the world in a multiplicity
of senses, including approaches to law and government. It is also a region in
which there have been significant developments in democratisation and
constitutionalism in recent years, generating a substantial
literature and
encouraging the development of regional constitutional
networks.[1] Typically, however, Asia
has been underrepresented in comparative legal and constitutional
studies.[2] Even more remarkably in
the face of the evidence, there has been a tendency in comparative law, with
implications for comparative
constitutional law, to treat Asian legal systems as
homogenous.[3] This tendency appears
to be a reaction to the perceived difficulty of dealing with the depth and
distinctiveness of Asian culture,
which in this context also tends to be
perceived as homogenous.[4] In Asia as
elsewhere, however, while a degree of regional cultural homogeneity can be
expected, driven by shared historical and geographical
experience, there is
considerable cultural difference both within and between states. While this
essay is not confined to consideration
of Asia, it is written with the challenge
of developing a comparative approach that is apt to include Asia in mind.
The second assumption that I make for present purposes is that at least some
of the impediments to a truly global approach to comparative
constitutional law
are methodological. This is the principal subject of this essay. For reasons
that might themselves be instructive
if we were to reflect on them, there is no
developed debate on method in comparative constitutional law although there are
useful
individual contributions to the
field.[5] By contrast, there is a rich
literature on method in general comparative law, which is the subject of
wide-ranging debate and, sometimes,
vigorous disagreement among legal
comparative scholars.[6] In this
essay, I use the debate on method in general comparative law as a foil, although
I note that insights into method in comparative
constitutional law may be also
be derived from other branches of the social sciences, including comparative
politics.[7]
My argument is
developed in two primary stages. In the first, I examine the relevance for
comparative constitutional law of methodological
problems developed in the
context of general comparative law, so as to better understand the nature of the
challenges of constitutional
comparison. This part of the paper therefore begins
with a necessarily brief discussion of a range of standard methodological issues
in comparative law, before identifying the particular characteristics of
constitutional law that might affect comparison and assessing
their
implications. At this stage, I treat constitutional law in traditional terms, as
the framework of government for an ever-increasing
number of Westphalian states.
The second stage of the argument deals with the impact of contemporary
conditions on the nature and extent of the challenge of comparing
constitutional
arrangements. Famously these conditions include, although they are not limited
to, the phenomena of internationalisation
and globalisation. In a variety of
ways, these are a force for a degree of constitutional convergence, in substance
as well as in
form. In this part of the paper I suggest, however, that at least
some contemporary trends are a catalyst for diversity as well.
If this it is
correct, the difficulties of comparative constitutional law in our times may be
neither greater nor less than they
were before, but simply different.
In the
conclusion to the paper I draw these threads together, in order to make some
propositions on which a more global discipline
of comparative constitutional law
might be based. Some of these are tentative at this stage. I welcome
observations on them all.
II. IS COMPARATIVE CONSTITUTIONAL LAW DIFFERENT?
The literature on comparative
law canvasses a range of standard methodological and theoretical questions that
have potential application
to comparative constitutional law. Five are
identified below. Although they are examined separately, it should be obvious
that they
are interrelated in a variety of ways.
The first concerns the
extent to which assumptions can properly be made about the similarity of legal
systems or the differences between
them for the purposes of comparative
law.[8] This question is inherent in
any comparative project although it is raised in a critical form by proposals
for the harmonisation
of law, which contributed to the emergence of the
discipline in the first place.[9] As
consideration of the implications of harmonisation suggests, the challenge
presented by the dichotomy between similarity and difference
potentially extends
to the values that underpin any legal system, the principles to which it gives
effect and the goals that it seeks
to
achieve.[10] There are sharply
divergent views on this issue, between those who are prepared to accept, albeit
to varying degrees, that there
is substantial and increasing similarity between
legal systems and those who maintain that the differences are deep, significant
and potentially unbridgeable, and that any convergence is more apparent than
real.[11]
A second methodological
issue raises the question of how comparativists can ensure that the phenomena
about which they seek to draw
conclusions across two or more jurisdictions are
relevantly comparable. The technique of functionalism is one standard response,
offering the function to be performed as the tertium comparationis around
which comparison should focus, thus avoiding the predictable danger that similar
functions might be performed in different
ways in different societies. Insofar
as functionalism assumes too readily that certain functions are shared, or that
they are always
performed by legal rather than other social institutions, it
falls foul of the dichotomy between similarity and
difference.[12] Functionalism can
avoid these obvious pitfalls but can never, probably, take sufficient account of
contextual circumstances to satisfy
difference
theorists.[13]
A third issue
concerns taxonomy or classification. In this context, it refers to a means by
which the legal systems of the world might
be grouped to assist
macro-comparison, at least in the initial stages of a project. The task of
finding a reliable and consistent
classificatory system is complicated by the
diversity of the world’s legal systems, including the phenomenon of
“mixed”
legal systems; the effects of ongoing processes of evolution
and cross-fertilisation; and the implications of cultural context for
the
validity of particular classification schemes. The three principal contenders
would categorise legal systems by reference to
legal families, legal traditions
or legal culture.[14] All accept
that the boundaries of each category must be permeable to a degree. None gives
an entirely satisfactory account of the
legal systems of the world that also is
useful for classificatory
purposes.[15]
A different
approach, by Ugo Mattei, categorises legal systems by reference to dominant
“patterns” of influence on law
as professional, political or
traditional. For the purposes of this approach, a professional pattern of law is
one in which law and
politics are distinguishable and “largely
secularised”;[16] under a
political pattern law and politics are more closely intertwined, in the sense
that the political process tends to determine
the outcome of the legal process,
rather than vice-versa;[17] in the
context of a traditional pattern of law there is no separation between law and
religious or philosophical
traditions.[18] I will return to
this approach later, for the purposes of determining the extent to which this
schema, although not the detailed
application of it, might be adapted to the
needs of comparative constitutional
law.[19]
A fourth issue for the
methodology of comparative law concerns cultural difference. How significant is
it? Can it adequately be grasped
by an outsider? To what extent does it matter
if the richness of an “insider’s” point of view, evocatively
characterised
by Legrand as “mentalité,” is beyond the reach
of a comparativist?[20] And what is
“culture” for this purpose, anyway? In this last regard, two points
should be noted. One is a view in the
literature that what really counts is
legal culture, or the “mentalité” of the principal actors in
a legal system.[21] The other is the
recent disaggregation of the idea of culture by Roger Cotterrell into four
component parts: beliefs and values;
tradition, including historical experience;
material culture including levels of technological and economic development; and
“emotional
attachments and
rejections.”[22] Cotterrell
notes that the linkages between these elements makes it useful to continue to
have regard to more general conceptions
of culture, rather than examining its
component parts in isolation from each other. The disaggregation is helpful,
nevertheless,
to deal with a challenge that Cotterrell himself has described as
“trying to nail a jelly to a
wall.”[23]
The final issue
for consideration here is the phenomenon of pluralism. For present purposes,
this draws attention to the fact that
a variety of legal orders, or normative
orders with an essentially legal effect, may be operative within a single state
and thus
relevant for comparative
purposes.[24] In some cases, state
law will indicate which norm is to prevail in cases of conflict, although the
outcome may be different in practice.
In other cases, legal orders sanctioned by
the state will co-exist with other unofficial normative systems, which may be
even harder
to detect.[25] In either
case, the competing legal orders may be underpinned by different values and
rationales, which also may conflict with each
other.[26] The phenomenon of
pluralism potentially affects all states, but is likely to be particularly
significant in societies in which both
western law and the western conception of
law have been superimposed on other forms of legal and social
organisation.
Much of the
literature on comparative law excludes or at least gives short shrift to public
law. In part, this reflects the manner
in which comparative law evolved
historically, as a discipline concerned with private law, driven by the
potential for harmonisation.
As a practical consequence, the expertise of most
comparative legal scholars lies in private law. As Alan Watson warned his
readers
as recently as 2004, “[C]onstitutional law is beyond my
expertise.”[27]
But the
exclusion of public law from much comparative law discourse also reflects a view
that comparative public law—of which
constitutional law is, for this
purpose, the most challenging subset—is more difficult, to the point of
making comparison “misleading
and
futile.”[28] This is not a
view that comparative constitutional lawyers are likely readily to accept. It
nevertheless highlights the reality that
constitutional law is a distinctive
branch of law, for which a distinctive methodology may be required. In what
follows I identify
a range of differences between constitutional and private law
which may affect comparative method. They are grouped under five headings:
the
relationship between Constitutions and states; the roles of Constitutions; the
impact of politics; the relevance of history;
and the correlation, or lack of
correlation, between legal and constitutional systems.
The first and most
obvious distinction between Constitutions and other law is the close
identification of Constitutions with the states
or other polities to which they
relate. Each state has a Constitution of its own, whether embodied in a single
formal document or not. A Constitution may be regarded as constituting or
reconstituting the state.[29] In any
event, it typically is the source of legitimacy for the authority of the organs
of the state. The Constitution derives its own legitimacy from theories about
the locus of sovereignty within the
state.[30] On any view, therefore,
there are at least as many Constitutions as there are states; and no two state
Constitutions are the same.
Even more significantly, the nature of the bond
between a state and its Constitution provides a basis on which claims of
exceptionalism can be, and sometimes are,
built.[31]
A second point of
distinction concerns the roles of a Constitution. Constitutions typically
organise the power of the state; create its
institutions;[32] structure
fundamental aspects of the relationship between the state and its people and
sometimes between the people inter se; provide the basis on which to
identify the validity of other state law. In these respects, Constitutions
represent a form of positive
law, which is quintessentially state law, although
differing in important respects from ordinary state law.
But Constitutions
perform other roles in the polity as well. Almost every Constitution has some
kind of symbolic value, for which it may deliberately have been designed,
although symbolic status may also inadvertently
be acquired. In this connection,
a Constitution may be used to reinforce certain goals of the state of which
national unity, inter-communal respect, peaceful co-existence and national
self-determination are possible
examples.[33] A Constitution may
play, or be perceived to play, an expressivist role within a state, reflecting
its history and culture.[34] All or
parts of a Constitution may be aspirational, particularly during periods of
transition or transformation. In some cases, all or part of a Constitution may
be cosmetic, with a view to influencing perception rather than action. As Gunter
Frankenberg has argued, not all dimensions of
the role that a Constitution plays
are likely to be clearly articulated, although they may be signalled by
‘odd details and loose ends’ in the written
document.[35]
Third,
Constitutions typically lie somewhere between politics and positive law. In the
early 21st century, almost all Constitutions are legal instruments,
representing positive law in whole or in large part. Most Constitutions
also are
accepted as a type of higher law, which is given effect through a form of
judicial review. But in the final analysis, the
original authority for the
Constitution of a state depends on factors that lie beyond law and the ongoing
effectiveness of the Constitution as superior law depends on the acquiescence of
powerful political actors.[36]
Moreover the nature of a Constitution is such that it is likely to be
supplemented significantly, not only by a variety of “legal
formants”[37] but by political
practices and understandings of various kinds. The extent of dependence on the
latter varies, with the United Kingdom
as an extreme case.
A fourth
distinctive feature of constitutional law is the formative influence of history.
In some instances, of which the United Kingdom
again is a conspicuous example, a
Constitution is an organic product of the history of the state. Most
contemporary Constitutions are somewhat more contrived, in the sense that
they
are deliberately made at a particular moment in time, drawing on other
constitutional models. Even so, however, history has
a formative effect. A
Constitution is likely to be the product of an historical moment, or a
succession of such moments.[38]
Constitutions tend to be written with past, as well as present problems in
mind.[39] All else being equal,
constitutional choices are likely to show evidence of
path-dependency.[40] Constitutions
are written to last, whether or not they actually do
so.[41] A Constitution that is
long-lived is likely to be encrusted with historical experience that may be
critical to an understanding of
it.[42] Such a Constitution may well
have developed organic characteristics of its own, of which the interdependence
of its component parts is a common sign.
One final, potentially relevant
point of distinction between constitutional and private law concerns the
relationship between constitutional
and legal systems. There is a degree of
correlation between the two. Most states with a common law legal system have
constitutional
arrangements that are influenced by one or other of the common
law constitutional traditions of the United Kingdom and the United
States or,
often, by some composite of the two. Many states with a civilian legal system
have constitutional arrangements that draw
on the traditions of the civil law,
often derived from the French or German originals. States that recognise Islamic
law as a source
of state law may have Islamic features in the Constitution as
well.[43] The correlation has some
functional significance, moreover, to the extent that legal and constitutional
systems complement each other.
By way of example, the use of a diffuse form of
constitutional review by most common law constitutional systems suits the
typically
indistinct boundary between public and private law in common law
states and enables courts to resolve issues before them by reference
to any
source of applicable law.[44]
But
the correlation is not complete. The point was made earlier that so-called mixed
legal systems complicate analysis even in comparative
private law. Typically,
systems are characterised as mixed because they draw on different legal families
for private and public law.
Relevantly for present purposes, in many such cases,
public law follows the contours of the common law
tradition.[45] Already, in such
cases, there is a disjunction between the legal system and constitutional
arrangements, which may affect the operation
of both. And the alignment of
Constitutions with legal systems is further disturbed by the fact that many
states with legal systems
that normally would be assigned to one of the standard
families of law have constitutional arrangements generally found in association
with another. The mingling of an essentially civil law legal system with diffuse
constitutional review in some countries in Latin
America, under the influence of
the Constitution of the United States, is a case in
point.[46] Japan is another
example.[47]
To draw conclusions about the
implications for comparative method of these characteristics of constitutional
law I return to the methodological
issues I identified earlier, drawn from
experience in comparative private law.
The first of these concerned the
extent to which assumptions can be made about the similarity of legal systems
for the purposes of
designing comparative projects. I noted in passing that, in
relation to private law, this question sometimes is raised in the context
of
proposals for harmonisation of law, with the aim of achieving effective
uniformity. At the very least, in relation to constitutional
law, it is clear
that harmonisation of constitutional text and structure between states is not a
goal, at least for comparative constitutional
scholars. In other respects,
however, the questions presented for comparison by the dichotomy between
similarity and difference are
as significant and difficult in constitutional as
in private law; and perhaps more so.
Constitutions are not written in a
vacuum. Ever since the concept of a Constitution began to emerge, new
Constitutions have been modelled on old ones, impelled by a variety of
influences ranging from admiration to
colonisation and other hegemonic processes
and including, more recently, internationalisation. A degree of convergence of
constitutional
concepts, institutions and norms is the inevitable result. But
convergence in form does not necessarily mean convergence in understanding,
in
values and priorities, or in the operation of constitutional arrangements in
practice in the face of a plethora of local contextual
factors. There may be
convergence in these respects as well in consequence of, for example,
interjurisdictional borrowing by judges
at the interpretive stage. Nevertheless,
drawing on their innate understanding of the nuances and interconnectedness of
the constitutional
arrangements of their own states, comparative constitutional
scholars should be cautious about drawing conclusions too readily from
apparently similar constitutional phenomena.
The second question about
method identified earlier was the need to ensure that the subject-matter of
comparison is soundly based.
I have hesitated over the suitability of the
functionalist method for comparative constitutional law, given the importance of
historical
and cultural understanding. For the moment at least I am persuaded,
however, that functional assumptions are latent in many comparative
constitutional projects and that functionalism is positively required for the
effective design of others, although it is by no means
an all-purpose tool. A
classic illustration of its use in the constitutional context is the manner in
which human rights are protected.
A comparison of rights protection in, say,
India where a wide range of rights are
constitutionalised,[48] Hong Kong,
where rights protection depends on the constitutional status given to
international human rights treaties by section 39 of the Basic
Law[49] and Australia, where rights
are protected largely through institutional
design,[50] clearly calls for a
functional approach rather than one confined to positive law alone.
I use
functionalism here to refer to the sophisticated form of equivalence
functionalism recently elaborated by Michaels, which, inter
alia, assumes that
rules are “culturally embedded,” albeit from an outsider’s
point of view.[51] Its application
for the purposes of constitutional comparison is complicated by the problem of
accurately identifying functional
equivalence. While some functions are common
to most constitutional systems, many others are much less widely shared. An
example
of a function that is confined to South Asia is the eradication of the
practice of untouchability, which the framers of the Constitution of India set
out to achieve.[52]
The third
issue, concerning taxonomy, involves the ordering of constitutional arrangements
in order to frame a comparative project
and in particular a project that is
undertaken on a large scale. The nature of Constitutions and, by extension, of
constitutional
law suggests two hypotheses here, each of which involves some
departure from the methodology of private law. The first is that the
breadth of
a constitutional system calls for a multiple or layered taxonomy, which enables
relevant teleological, structural and
cultural characteristics of a
constitutional system to be taken into account. The second is the possibility
that constitutional tradition
is a more useful organising principle than legal
family or even legal tradition, accepting that the latter may be subsumed in the
former. Drawing on Glenn, the notion of constitutional tradition might be
conceived for this purpose as “transmitted information,”
which
reflects identity and offers cohesion, but which nevertheless is a “an
ongoing bran-tub churned by new generations,”
open to influence from
outside.[53]
Classification of
constitutional arrangements by reference to either family or tradition has some
useful analytical and predictive
value. On the other hand, it has downsides as
well. One is that, inconveniently for the development of a global discipline,
the most
influential constitutional traditions for much of the 20th
century were those of the United States, the United Kingdom, Germany and France;
the extent to which other competitors are now in
the field is taken up in the
next part. The second is that categories of this kind are also potentially
misleading. A constitutional
tradition is never inherited in toto and assignment
of a particular constitutional system to a “tradition” may deflect
consideration of other dimensions of it, some of which will be distinctive to a
degree that is likely to deepen over time. At best,
therefore, consideration of
constitutional tradition can be only a prima facie indicator of the types of
constitutional arrangements
likely to be found in any particular system and of
the rationale for them.
The fourth methodological problem concerned the need
to identify and take account of cultural context in any comparative legal
project.
As noted earlier, four dimensions of the concept of culture, identified
by Cotterrell for this purpose, are beliefs and values; tradition,
including
history; material considerations; and emotional reactions and
responses.[54] Each of these
components, individually and collectively, may be critical to understanding of a
constitutional regime. If anything,
they are likely to be more significant for
understanding constitutional than private law. On the other hand, the
distinctive nature
of a Constitution affects—or may affect—the
enterprise of understanding it in cultural context. As Gunter Frankenberg has
observed, Constitutions
often seek to shape aspects of culture, as well as being
shaped by it[55] and their character
gives them a chance of doing so.
In any event, there is a question about
whose culture is relevant for the purposes of understanding constitutional
arrangements. The
answer must be that it depends on the subject-matter of the
comparison. One option is the culture of the community at large, to the
extent
that it can be conceived as
homogenous.[56] This possibility
rests not so much on the theoretical attribution of the authority for a
Constitution to popular sovereignty, but on the practical efforts that
increasingly are made to safeguard the efficacy of a Constitution by ensuring
popular ownership of arrangements that in other respects may seem abstract,
unfamiliar and remote.[57] In some
instances, moreover, the operation of a Constitution will be affected directly
by community culture. To take an obvious example: a Constitution that is
regarded as significant and expected to shape the actions of organs of state is
likely to last longer and to operate more
effectively than one that is
not.[58]
A second, and not
necessarily mutually exclusive option, would focus on the values, beliefs and
emotional responses of constitutional
elites, drawing by analogy on the view
that legal culture is critical for an understanding of private
law.[59] Such elites might comprise,
for example, political leaders, elected representatives, senior state employees,
judges, constitutional
scholars; perhaps the media. It goes almost without
saying that the attitudes of people in these positions are likely to be critical
in a variety of constitutional contexts. But these groups are also likely to be
divided on key questions of culture, including, in
some contexts, the
constitutional relevance of
culture.[60] They may also be
tempted to use arguments about culture strategically, to secure their own vision
of the state. In the face of these
possibilities, claims of culture cannot be
taken at face value and require more thorough evaluation, however fraught such
an exercise
may be.
Finally, there is a question about whether and if so how
pluralism might affect a comparative constitutional project. Constitutional
law
is state law par excellence. Of course, Constitutions are supplemented by
other types of laws and other norms, in the form of non-legal practices. It is
often
not possible, or even sensible, to try to draw a bright line between
Constitutions and the rest of the legal order. Typically, however,
all such laws
and practices are part of the same system of state law and practice, the
hierarchical ordering of which is generally
relatively clear.
Even in the
comparative constitutional context, however, pluralism may be a relevant factor.
There may be other, non-state domestic
norm systems that compete with the
constitutional order and render it ineffective or, at least, less effective than
it might otherwise
be. The custom and practice of the caste system in India
again is an example; conflict between traditional attitudes to gender and
individual human rights standards is
another.[61] There may also be other
domestic normative systems that complement constitutional arrangements. The
determination of the Constitutional
Court of Korea that the location of the
capital in Seoul is part of “customary constitutional law” is a
recent, although
contested, case in
point.[62] Finally and most
obviously, constitutional law may co-exist with supra-national or international
regimes in competitive conditions,
where the formal legal hierarchy is unclear
or its application is unpredictable. The interpenetration of domestic
constitutional
and international law is now a significant phenomenon and is
taken up again in the next part.
III. CONDITIONS OF CONSTITUTIONAL MODERNITY
The discussion so far has deliberately relied on a somewhat traditional,
acontextual understanding of constitutional law, in order
to focus on the points
of similarity and difference between comparative private and comparative
constitutional law. It is not possible
to reach conclusions about the
methodology of comparative constitutional law in the first part of the
21st century, however, without factoring in the forces for change in
the discipline that have emerged in recent decades, many of which
can be traced
to the end of the cold war. These include the growing significance of
international law and the impact of globalisation
in a variety of
guises.[63] The results, as far as
the Constitutions of the world are concerned, can conveniently be summarised as
proliferation, innovation,
internationalisation and cross-fertilisation, the
influence of all of which is extended by the extraordinary advances in
communication
that have been made possible by information technology. Famously,
this period has also been characterised by some erosion of the
sovereignty of
states. This development has by no means been all one way, however. The state
remains the most significant, although
no longer the sole, subject of
international law. And in the first decade of the 21st century a
collection of factors has tended to reinforce the perceived potential of the
state as the champion of its people in global
affairs. These have included
security concerns in the face of international terrorism, successive regional
and global fiscal crises
and the struggle to find an acceptable and effective
solution to climate change.
The remainder of this part examines the nature
of these various forces for change in the discipline of constitutional law more
closely.
The next part identifies their principal implications for
constitutional comparison.
Over the last two decades, there has been a
marked proliferation of new Constitutions. As a rough estimate, 91 new
Constitutions or
constitutional-type instruments for states and other distinct
polities have come into force since 1990; and 26 of these were promulgated
from
2000.[64] The explanation for some
of this activity lies in the emergence of new states. Some indication of the
extent to which this has occurred
is offered by the increase in membership of
the United Nations from 159 member states in 1990 to 192 members in 2006,
although admittedly
it is not a perfect
guide.[65] On any view, however,
there are now more constitutionalised polities than there were before and thus
more players on the constitutional
field. In any event, the increase in new
Constitutions for old states is significant as well for present purposes, for
the insight
that it offers into changes in the conception, substance or process
for making Constitutions that may be taking place. In this connection
it should
be noted that the statistics understate the potential for constitutional
innovation because they do not take into account
major changes to existing
Constitutions that undoubtedly have occurred over the past 20
years.[66]
The extent of
constitutional innovation that has occurred during this period requires more
targeted research. Anecdotally, however,
it is significant. A growing literature
documents experimentation with the process of Constitution making, in the wide
range of contemporary conditions in which it takes
place.[67] There have been shifts in
ways of thinking about Constitutions, of which the elaboration of the concept of
transitional constitutionalism,
in the face of experience in East Asia and
elsewhere, is an example.[68] And
there have been many new initiatives in the substance of Constitutions: the
matters for which Constitutions make provision and
the way in which they do so.
These have been driven by a variety of factors: popular demand; the need to
resolve new problems, including
deep cleavages within societies; the impact of
internationalisation and globalisation, both generally and on traditional
concepts
of citizenship and territoriality; the interest in new ideas that is
naturally fostered by such a ferment of
activity.[69] Some of the many
responses range from experimentation with the constitutional entrenchment of
social and economic rights in justiciable
form;[70] constitutional recognition
of environmental rights and
duties;[71] a host of mechanisms to
accommodate divided societies, including the devolution of public power along
ethnic lines;[72] the development of
techniques to balance rights protection with parliamentary sovereignty in the
particular form associated with
the British constitutional
tradition;[73] the extension of
voting rights to the diaspora;[74]
and various formulations designed to reconcile recognition of the sharia
with constitutional protection of
rights.[75]
Internationalisation
refers to the development of international and in some regions supra-national
law through which states become
committed to shared norms of a broadly
constitutional kind. Typically, such norms have effect in domestic law and
practice in on
way or another, although there is an extraordinary mosaic of ways
in which this occurs.[76] In some
states both customary international law and treaties to which the state is a
party automatically have the force of law and
in a few international law
overrides the Constitution, generally or in specified
circumstances.[77] Increasingly,
international norms are transposed directly into new Constitutions, in
preference to reliance on the formulation of
rights in the Constitutions of
other states.[78] Even in the
absence of any formal act of incorporation, international legal norms are likely
to have indirect effect in state public
law, through adjudicative
processes.[79] Importantly, for
present purposes, national judges sometimes take international law into account
in the interpretation and application
of the Constitution and in some states
they are constitutionally required to do
so.[80]
Cross-fertilisation, on
the other hand, is the product of globalisation, understood here to refer to all
forms of interaction between
people, institutions and economic and social actors
across jurisdictional boundaries. It has an impact on the global flow of
constitutional
ideas at many levels and in a variety of ways.
Constitution-makers and their advisers invariably look to the experience of
other
states for insight into both process and substance, at the point at which
a Constitution is being developed. The emergence of international and regional
constitutional support organisations further encourages the spread
of global
constitutional experience.[81] The
interconnectedness of world fiscal and economic arrangements often drives the
direction of constitutional design, either as the
price of international
assistance or in order to develop and maintain competitive
advantage.[82] In other respects,
also, political leaders are likely to consider practice elsewhere in determining
policies of a broadly constitutional
kind: in relation to electoral law and
administration, for example, or in developing anti-corruption measures.
Scholarly networks
of various kinds provide a medium through which emerging
perspectives on constitutional law spread through the global constitutional
community.[83]
Cross-fertilisation
takes place in the course of constitutional adjudication as well. Despite the
angst recently generated by this
practice in the United States, constitutional
judges increasingly consider the perspectives, doctrines and conclusions of
courts
of other states in dealing with the questions that come before them and
in framing their own reasons.[84] In
the case of some courts, their ability to do so is enhanced by a practice of
employing clerks from other
jurisdictions.[85] Courts in some
other polities draw some or all of their judges from other states, with similar
effect.[86] In both this and other
contexts, cross-fertilisation is considerably facilitated by the ease and speed
with which increasingly sophisticated
technology enables information to be
obtained about constitutional developments elsewhere. At least for English
speakers, the flow
of information is assisted by a growing tendency for the
jurisprudence of constitutional courts in some jurisdictions where English
is
not an official language to be made available in English
nevertheless.[87]
The
consequences of internationalisation and globalisation for the institution of
the state are ambiguous; a situation that is likely
to persist for some time to
come. The tendency of these forces to erode the influence of the state is in
tension with the continuing
significance of states for the vast majority of
their peoples. But on any view some changes have occurred that are relevant from
the standpoint of constitutional law. States are no longer fully sovereign, if
sovereignty is understood in absolute terms, encompassing
both theory and
practice. The degree of involvement of the international community in the
governance of states raises questions for
the very conception of a Constitution
and the sources from which it derives its legitimacy. And the hitherto close
affinity between a state, its territory and its people
is now somewhat more
complex. Threats to the internal territorial hegemony of states that are
presented by internationalisation are
complemented by a tendency to
constitutionalise some forms of extraterritorial action by
states.[88] Increasingly
heterogeneous populations with multiple affinities and allegiances, which are in
part the product of population
movements,[89] are a catalyst for a
decline in the significance of formal
citizenship.[90] One of the many
implications of these developments is the erosion of the cultural identity of
states, in the sense that culture is
less likely to be bounded by state borders
and, conversely, that a state is more likely to be host to a multiplicity of
cultures.[91]
IV. IMPACT OF THE PRESENT ON CONSTITUTIONAL COMPARISON
What are the consequences of the context in which Constitutions operate
in the 21st century for the methodology of comparative constitutional
law?
On the face of it, most of the changes that have occurred are a catalyst
for convergence of national constitutional systems. To the
extent that
convergence is taking place, moreover, it has implications for most of the
methodological issues already explored: the
approach to comparison and the
utility of the functional method; the significance of the barrier presented by
cultural difference;
the difficulty of understanding another’s system in
adequate depth.
The arguments in favour of convergence are relatively clear.
There has been a slow but steady spread of forms of democracy and of
at least a
minimalist understanding of the rule of law. Increasingly, there is a shared
conception of a constitution as an instrument
that represents fundamental law,
derives its authority from a sovereign people and needs to be taken seriously by
the organs of state,
at least as far as public and international perception are
concerned. In one form or another, the institution of judicial review
of the
constitutionality of state action, including legislation, is gaining acceptance.
There is some growing similarity in the substance
of Constitutions, involving
both text and institutional structure. Equally, similarities in the
interpretation of Constitutions are
facilitated by trans-border judicial
dialogue. Arguably, there may even be some convergence of values, if
significance can be attached
to the commitments of states to norms of a
constitutional character laid down by international
law.[92] Reflecting on these trends,
Mark Tushnet has described the globalisation of constitutional law as
“inevitable,” with
reference both to the structures of
constitutional systems and their protection of
rights.[93] Jiunn-Rong Yeh and
Wen-Chen Chang have argued that “most nations . . . now have similar
constitutions.”[94] Anne
Peters has claimed that Constitutions are globalising both in form and
substance, identifying the rule of law, democracy, social
security and the
organisation of territory as four of the core principles in relation to which
convergence has occurred.[95] She
has argued further that, in consequence, national constitutions are now only
part of a “compound constitutional system”
supplemented by
international law.[96]
Prudence
suggests caution, however. Inevitably, convergence is patchy: most pronounced,
although far from complete, in relation to
rights; less reliable in relation to
institutional features of a
Constitution.[97] As in earlier
times, it remains true now that apparent similarity may mask underlying
difference. Be they ever so similar in design,
constitutional arrangements are
likely to have different effects in different cultural contexts and in states in
different stages
of constitutional development. It follows that it cannot be
assumed that principles and institutions adopted by one state from another
will
operate in precisely the same way, even in the equally unlikely event that they
are adopted in precisely the same
form.[98] In the interconnected
setting of a Constitution, moreover, adopted institutions will be affected by
the rest of the Constitution, to which they are likely gradually to
adapt.[99] The challenge of
comparison is further exacerbated by the generality with which many key
constitutional concepts are expressed, leaving
considerable scope for varied
understandings. The rule of law is a case in point, capable of embracing both
arrangements that require
no more than mere compliance with law and those that
expect the law to meet stipulated
standards.[100]
More
significantly still, there are features of the contemporary global
constitutional scene that foster diversity and difference.
Some of these have
been identified already: a larger number of constitutionalised states; the
recent degree of constitutional innovation.
Diversity is further promoted by a
new self-confidence on the part of many states in relation to questions of
governance and constitutional
design, leading them to explore the implications
of their own culture and historical experiences as bases for local
constitutional
solutions.[101] In
a parallel development, the pattern of constitutional borrowing has become
increasingly eclectic, particularly amongst newly democratising
states.[102] Relevantly for
present purposes, those who make, use, interpret, apply and analyse
Constitutions are more likely now to draw insight
from an increasingly wide
range of available sources, rather than confining themselves to a particular
legal or constitutional
tradition.[103] Less usual
combinations of institutions and concepts produce correspondingly less
predictable
results.[104]
Increasing
diversity in the flows of constitutional information and influence, heralding a
breakdown of constitutional traditions,
has other implications for comparative
constitutional law, two of which are considered further here. The first concerns
the state
of constitutional theory. We know that the older, established, western
constitutional systems from which most of the world’s
constitutions
derived in the 19th and 20th centuries were closely
intertwined with and justified by theories informed by the historical experience
of their respective states.[105]
These theories continued to be honed over time, also by reference to historical
experience. What happens to these theories, in the
rush of constitutional
transplants? There are several possibilities: that the theories are transferred
as well, but without historical
roots; that local theories emerge in the
recipient states, with implications for the depth of convergence; that
transplanted arrangements
are only lightly theorised, if they are theorised at
all, with implications for the discipline; and that all these more localised
theories are being supplanted by others that purport to be global, but that
nevertheless need to be tested against the lived experience
of states. These
questions are not new, but were more easily overlooked as long as
transplantation occurred within more or less clearly
defined traditions as part,
for example, of the colonisation process. They now require more sustained
attention, drawing on the knowledge
base and skills of comparative
constitutional law.
A second issue raised by the erosion of traditions is the
familiar problem of taxonomy. I suggested earlier that, before the intervention
of the current phase of globalisation, constitutional arrangements might be
classified by reference to constitutional traditions,
which in turn are
influenced by, although not necessarily co-extensive with legal traditions. For
this purpose, I used the concept
of tradition in the way developed by Patrick
Glenn, as determined by degrees of influence, with boundaries that necessarily
are “fuzzy.”[106] It
follows that my conception of taxonomy or classification also is somewhat loose,
providing only an indication of some of the characteristics
that may be found,
which may call for independent verification.
Loose as it is, once overlaid by
conditions of globalisation with their encouragement to less discriminate
borrowing, the concept
of classification by reference to constitutional
tradition becomes less satisfactory still. It may be asked, therefore, why
classification
by reference to traditions should not be abandoned altogether.
The answer is that it still has some utility in relation to many—perhaps
most—states. The dynamics of path dependency are still operative. There
are some incentives to remaining broadly within the
same constitutional
tradition, in terms of continuity, familiarity and complementarity with the rest
of the legal system. Consideration
of constitutional tradition still has some
predictive value: within the Asian region, for example, my understanding
continues to
be assisted by knowledge of the fact that the constitutional
arrangements of India have been substantially influenced by common law
constitutional institutions, principles and practices while those of, for
example, Indonesia have not.
Nevertheless, the extent of cross-fertilisation
is such that this classification needs to be handled with increasing caution. On
any
view, provision needs to be made for a “non-aligned” category of
states that cannot helpfully be assigned to any tradition,
even with the usual
caveats attached. And the time may have come either to begin investigating the
insights that can be derived from
the somewhat different conception of
constitutional family trees[107]
or to consider abandoning genealogy altogether in favour of a predominantly
historical approach.
A classification based on traditions, or even
influences, is historical and conceptual in character. Given the character of
Constitutions,
it would be useful to have another that takes account of
contextual difference as well, including the significance of a Constitution in
the system of law and government. There have been various attempts to categorise
constitutions for this purpose over time. Writing
in 1957, for example, in
response to the then-prevailing geopolitical climate, Karl Loewenstein
distinguished between “nominal,”
“semantic” and
“normative”
Constitutions.[108] Prompted by
reflection on the Constitution of South Africa, Cass Sunstein has developed a
distinction between “preservative” and “transformative”
constitutions.[109] In his opening
remarks to the Third Asian Forum for Constitutional Law, Juinn-Rong Yeh
identified three “changing paradigms”
of modern constitutionalism:
traditional constitutionalism; transitional constitutionalism; and transnational
constitutionalism.
Each of these categorisations offers insights into what
may be significant differences between constitutions for comparative purposes.
The more recent reflections of Sunstein and Yeh suggest two additional points.
One is that it is no longer possible, if ever it was,
to draw a bright line
between normative and other Constitutions and that the line between
“constitutional” and other
approaches to governance also may be
indistinct.[110] The second is
that, on this basis, even within the category of Constitutions that might
loosely be described as “normative,”
there are important
distinctions to be drawn.
I suggested earlier that Mattei’s
classification of legal systems as professional, political or traditional might
lend itself
to adaptation to comparative constitutional law. Mattei’s
approach is driven by conceptions or “patterns” of law,
grouped by
reference to the primary source of influence on social behaviour. His categories
offer potentially useful surrogates for
different constitutional paradigms,
which may also help to give some insight into the distinction between
constitutional arrangements
that are relatively established and those that are
in the process of significant transition. Thus a “professional”
conception
of a Constitution might refer to one in which the Constitution has
significant normative effect although not necessarily as
law;[111] under a
“political” conception outcomes might tend to be governed almost
entirely by the political
process;[112] and a
“traditional” conception might be understood as one in decisions of
a constitutional kind are governed primarily
by religious or other cultural
traditions.[113]
Mattei has
acknowledged that each of the patterns is in play to a degree in each legal
system and that in particular cases outcomes
may be determined by one of the
less dominant patterns.[114] He
insists, nevertheless, on the classification of legal systems according to the
pattern that is perceived to have hegemony, while
accepting that hegemony may
change over time. His concessions about variable influences must necessarily
apply in the constitutional
context as well. In addition, for a more nuanced
taxonomy of constitutions, it may be useful to develop an approach whereby the
proportionate
contribution of each of the patterns of influence, however
approximately determined, can be taken into account.
One final observation
about the contemporary constitutional scene concerns the emergence of
constitutional pluralism, understood to
reflect the perception that, at least in
some states, the Constitution is in competition with other legal
orders.[115]
It will be
recalled that comparative law has had a longstanding fascination with various
forms of pluralism within the confines of
the state. Critics have argued that
the domination of comparative law by western legal scholars has caused the role
of state law
to be exaggerated and the need for the coherence of the legal
system to be overstated, at the expense of an appreciation of other,
sometimes
competing, legal and non-legal norms that may significantly affect social
behaviour.[116] This perception
was more significant for private than for public law, although it may have had
some implications for the latter as
well. But the interpenetration of domestic
constitutional and public international law has provided additional sources of
law that
challenge the monopoly and ultimate predictability of state law in ways
that undoubtedly affect the constitutional order.
Much of the initial
thinking about constitutional pluralism was stimulated by the unusual character
of the relationship between the
European Union and the constitutional
arrangements of its member states, creating two levels of governance each of
which had “internally
plausible claims to ultimate
authority.”[117] The most
famous illustration comes from Germany, where the Constitutional Court asserted
its competence in successive Solange cases to determine the validity of
European law vis-à-vis the German Constitution, in uneasy co-existence
with the competence of the European Court of
Justice.[118] Arrangements
comparable to the European Union, with similar constitutional effects could be,
although they have not yet been, reproduced
in other regions. Meanwhile,
however, prompted by reflection on the relationship between legal orders in
Europe, it is possible to
understand the increasingly porous boundary between
constitutional and international law, accompanied by some erosion of the
hierarchy
between the two, as a form of pluralism that, at least for the moment,
affects states in different
degrees.[119] Krisch has claimed
that constitutional pluralism has advantages in terms of adaptability, space for
contestation and checks and balances
in managing the framework of governance for
diverse communities.[120] If so,
it may have potential that could usefully be developed to manage diversity and
conflict within particular states as well.
For a truly global discipline of comparative constitutional law, the
methodology for comparison must apply effectively, and be recognised
as having
effective application, to constitutional arrangements in all parts of the world.
In what follows, I draw together some
general propositions about method that
take into account of the lessons of comparative law, the nature of
constitutional law and
the global context in which Constitutions operate in the
early part of the 21st century.
First, the conception of a
constitution as a body of norms that empowers and constrains public institutions
and that, typically, has
the status of fundamental law is increasingly widely
shared. Exactly how widely and at what level of generality requires further
research. To the extent to which this development has occurred, however, it
provides a platform for a broader and more inclusive
discipline of comparative
constitutional law.
Secondly, there has been and is likely to continue to be
a significant degree of convergence of constitutional arrangements themselves,
affecting text, institutional design, interpretation, and, somewhat more
speculatively, values. This is not a phenomenon that is
peculiar to the
21st century, but there are features of our times that have
accelerated the process. Convergence contributes further to the ease of
constitutional
comparison and thus is useful for present
purposes.[121] It is not an
unqualified good, however. The world of the 21st century has not
attained a peak of perfection in the design and operation of constitutional
arrangements, in terms of either acceptance
or performance. There are advantages
in a diversity of approaches to constitutional government and in a degree of
competition between
them; this, indeed, is one of the reasons for seeking a more
global approach to comparative constitutional law. And as the circumstances
change with which Constitutions must deal, constitutional innovation is
required.
Thirdly, the extent of convergence should not be overestimated. No
Constitution is exactly the same in form or operation. Constitutional concepts
have different meanings in different system. In any event, Constitutions
are
complex organisms. To some degree at least, every Constitution is affected by
its history, including the circumstances of its making; the context in which it
operates; the often unarticulated
assumptions on which it is based; the priority
accorded to particular values; and a tendency to develop organic characteristics
over
time. The significance of these features may be mitigated, but it is
unlikely to be eliminated, by the forces for constitutional
convergence.
Further, it is plausible that contemporary conditions are a
catalyst for diversity as well. This case depends on the extent of
constitutional
innovation; the emergence of new patterns of influence; some
mixing of constitutional traditions; the growing constitutional self-confidence
of a larger number of states; and the occasional resurgence of nationalist
impulses. If the perception of these contradictory forces
is correct,
comparative constitutional method may be different in some respects, but not
necessarily less challenging.
The persistence of difference affects the way
in which a comparative project is conceived and given effect. Understanding of
the reasons
why particular constitutional arrangements exist in a particular
state and of their operation in practice will often call for historical
or
contextual analysis or both. Frequently, nevertheless, a functional approach is
appropriate for the design of a comparative project,
whether supplemented by
other techniques or not. In this case, the challenge is to be sure that the
function under consideration
is relevantly equivalent in the participating
jurisdictions; to make allowance for the fact that the mechanisms through which
the
function is achieved may serve a variety of roles in an interconnected
constitutional system; to be aware of the impact of context
and culture on the
way in which the function is performed.
These developments require revision
of old approaches to taxonomy although it is premature to abandon them
altogether. Constitutional
classificatory systems should err on the side of
inclusion. The aim should be to develop a taxonomy that is apt to encompass the
systems of the world but that also allows for evolution, makes provision for
marginal cases and does not freeze constitutional understanding
around the
experience of the traditional constitutional states. My present inclination is
to develop a multi-layered but flexible
taxonomy that combines constitutional
tradition, suitably tempered by consideration of influences from other sources;
with geographical
region, to capture elements of culture; and with an adaptation
of Mattei’s classificatory framework. But all of this requires
further
thought.
The seventh and most challenging proposition concerns culture: the
elephant in the room that discourages comparison altogether if
it is given too
much weight but renders comparison superficial and misleading if it is ignored.
Elements of culture could be captured
by the classificatory approach suggested
earlier. It may also be that the significance of cultural difference is
diminished to a
degree both by the nature of constitutional law as state law and
by the effects of globalisation. This cannot, however, be assumed.
Otherwise,
evaluation of the implication of culture must be left to individual project
design. Meeting this challenge is assisted
by the scholarly networks and
information tools that also are products of globalisation, which offer
mechanisms through which understanding
can be sought and conclusions tested.
The final point concerns pluralism. In any state there may be legal and
non-legal norms of a cultural kind that affect the operation
of the Constitution
in practice. But in conditions of internationalisation, supra-national and
international law offer additional sources of law that
affect constitutional
arrangements to an extent and in a variety of ways that differ between states.
It is necessary now, if it was
not before, for constitutional comparativists to
engage with the phenomenon of
international law, in order to fully
grasp their own discipline. There is also work to be done, through collaboration
between international
and domestic public lawyers, to bridge the gap between the
universalist assumptions of international law and the realities of
constitutional
difference.
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[*] 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]. The
Asian Forum for Constitutional Law is an
example.
[2]. For observations to this
effect in relation to general comparative law, see Andrew Harding,
Comparative Public Law: Some Lessons from South East Asia, in
COMPARATIVE LAW IN THE 21ST CENTURY 249, 251 (Andrew Harding & Esin
Örücü eds, 2002).; WILLIAM TWINING, GLOBALISATION
AND LEGAL
THEORY 185 (2000). See also WERNER MENSKI, COMPARATIVE LAW IN A
GLOBAL CONTEXT 17 (2006), arguing that Asian and African legal systems
should be studied both in their own right and as “integral elements
of the
global legal order.”
[3]. See,
e.g., K. ZWEIGERT & H. KOETZ, AN INTRODUCTION TO COMPARATIVE LAW
(3d ed. 1997), who identify “Far Eastern Systems” as one of
their eight legal families of the world. Cf. Ugo Mattei, Three
Patterns of Law: Taxonomy and Change in the World’s Legal Systems, 45
AM. J. COMP. L. 5, 8, 36 (1997). His very different taxonomy was designed
to incorporate different conceptions of law “within the mainstream
of
comparative law to avoid their marginalization into area studies,” but who
nevertheless assigned all Asian legal systems
to his third category of
“traditional” law, which he equated with the “Eastern legal
tradition.”
[4]. Mark van Hoecke
& Mark Warrington, Legal Cultures, Legal Paradigms and Legal Doctrine:
Towards a New Model for Comparative Law, 47 INT’L. & COMP. L.Q.
495, 502 (1998) (identifying “Asian culture” as one of four cultural
families for comparative
purposes).
[5]. E.g., Mark
Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE
L.J. 1225 (1999); Gunter Frankenberg, Comparing Constitutions: Ideas,
Ideals and Ideology—Toward a Layered Narrative, 4 INT’L
J. CONST. L. 439 (2006); Ran Hirschl, The Question of Case Selection
in Comparative Constitutional Law, 53 AM. J. COMP. L. 125 (2005);
VICKI C. JACKSON & MARK TUSHNET, DEFINING THE FIELD OF COMPARATIVE
CONSTITUTIONAL LAW (2002); SUJIT CHOUDHRY, THE MIGRATION OF
CONSTITUTIONAL IDEAS (2006); Mark Tushnet, Comparative Constitutional
Law, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 1226 (Mathias Reimann
& Reinhard Zimmermann eds.,
2006).
[6]. For the recent Oxford
handbook gives insight into the range, see THE OXFORD HANDBOOK OF COMPARATIVE
LAW, supra note 5.
[7]. In
relation to which, see THE OXFORD HANDBOOK OF COMPARATIVE POLITICS
(Carles Boix & Susan C Stokes eds.,
2007).
[8]. On the proprieties of
making any assumptions at all, see Ralf Michaels, The Functional Method of
Comparative Law, in THE OXFORD HANDBOOK OF COMPARATIVE LAW,
supra note 5, at 339,
369-72.
[9]. For an account of the
contribution to comparative law of the Congress of the Société
francaise de législation
compare, held in Paris in 1900, see Roderick
Munday, Accounting for an Encounter, in COMPARATIVE LEGAL STUDIES:
TRADITIONS AND TRANSITIONS 3-8 (Pierre Legrand & Roderick Munday
eds., 2003).
[10]. See, e.g.,
James Gordley, The Universalist Heritage, in COMPARATIVE LEGAL
STUDIES: TRADITIONS AND TRANSITIONS, supra note 9, at 31 (2003); Laurence
Rosen, Beyond Compare, in COMPARATIVE LEGAL STUDIES: TRADITIONS
AND TRANSITIONS, supra note 9, at 493
(2003).
[11]. For a survey by a
scholar committed to the latter view, see Pierre Legrand, The Same and the
Different, in COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS,
supra note 9, at 240
(2003).
[12]. Gerhard Dannemann,
Comparative Law: Study of Similarities or Differences?, in THE OXFORD
HANDBOOK OF COMPARATIVE LAW, supra note 5, at 383,
388-91.
[13]. Michaels, supra
note 8, at 365.
[14]. See
respectively, ZWEIGERT & KOETZ, supra note 3, at 69-75; H. PATRICK
GLENN, LEGAL TRADITIONS OF THE WORLD (3d ed. 2007); ADAPTING LEGAL
CULTURES (David Nelken & Johannes Feest eds.,
2001).
[15]. There is a helpful
overview and critique in WILLIAM TWINING, GENERAL JURISPRUDENCE 67-87
(2009).
[16]. Mattei, supra
note 3, at 23.
[17]. Id. at
28.
[18]. Id. at
35.
[19]. Mattei assigns Asian legal
systems generally to the category of “traditional” patterns of law,
although with some
hesitation. Id. at
36.
[20]. Pierre Legrand,
Comparative Legal Studies and the Matter of Authenticity, 1(2) J. COMP.
L. 365 (2008), available at
http://ssrn.com/abstract=1259920.
[21]. This
view is examined by Roger Cotterrell, Comparative Law and Legal Culture,
in THE OXFORD HANDBOOK OF COMPARATIVE LAW, supra note 5, at
709.
[22]. Roger Cotterrell, Law
and Culture—Inside and Beyond the Nation State, 31(4)
RETFæRD: NORDISK JURIDISK TIDSSKRIFT 23
(2008).
[23]. Id.
[24]. See
MENSKI, supra note 2, at ch.2. The discussion in Menski is
helpful.
[25]. The distinction
between these two is sometimes conceived in terms of “weak” and
“strong” pluralism
respectively. See MENSKI, supra
note 2, 115-16, discussing the work of John Griffiths. See also the
distinction between “official” law (including both State and
non-State law) and “unofficial” law developed
by Masaji Chiba and
examined in MENSKI, supra note 2,
119-28.
[26]. Characterised by Chiba
as “postulates.” Id. at
125.
[27]. Alan Watson, Legal
Culture v. Legal Tradition, in EPISTEMOLOGY AND METHODOLOGY OF
COMPARATIVE LAW 1 (Mark van Hoecke ed., 2004). For one notable exception,
see the work of John Bell on comparative administrative law in, for example,
Comparing Public Law, in COMPARATIVE LAW IN THE 21ST CENTURY,
supra note 2, at
235.
[28]. ESIN ÖRüCü,
THE ENIGMA OF COMPARATIVE LAW: VARIATIONS ON A THEME FOR THE TWENTY-FIRST
CENTURY 179 (2004); see also the influential views of Otto
Kahn-Freund, On Uses and Misuses of Comparative Law, 37 MOD. L. REV.
1, 7 (1974) (summarising the observations of Montesquieu on the
question).
[29]. HANNAH ARENDT, ON
REVOLUTION 125
(1973).
[30]. These accounts may, of
course, be different. See generally THE PARADOX OF CONSTITUTIONALISM:
CONSTITUENT POWER AND CONSTITUTIONAL FORM (Martin Loughlin & Neil
Walker eds., 2007).
[31]. In relation
to the United States, see Stephen Gardbaum, The Myth and the Reality
of American Constitutional Exceptionalism[2008] MichLawRw 15; , 107 MICH. L. REV. 391
(2008) (including the sources there
cited).
[32]. On the significance of
the link between public law and institutions for the purposes of comparison, see
Bell, supra note 27, at
240.
[33]. The values listed in the
founding provisions of the Constitution of the Republic of South Africa, section
1, provide a good illustration, including, inter alia, the
“achievement of
equality.”
[34]. On the general
notion of the expressive function of law, for which Constitutions are
particularly well-equipped, see Cass
R. Sunstein, On the Expressive Function
of Law, 144 U. PA L. REV. 2021 (1996). On its particular application
to constitutional law, see, for example, Tushnet, supra note 5, at
1269-81.
[35]. Frankenberg,
supra note 5, at
458.
[36]. For both these points, see
NEIL MACCORMICK, INSTITUTIONS OF LAW 39-49 (2007) (drawing on the work of
Hans Kelsen and HLA Hart
respectively).
[37]. Rodolfo Sacco,
Legal Formants: A Dynamic Approach to Comparative Law (I),
39 AM. J. COMP. L. 1, 22 (1991) (using the term to cover
“statutory rules, the formulations of scholars, and the decisions of
judges”).
[38]. The idea of
such moments was developed most famously by BRUCE ACKERMAN, WE THE PEOPLE ,
VOLUME 1, FOUNDATIONS
(1991).
[39]. Bell, supra note
27, 241-42.
[40]. Mariana Mota Prado
& Michael J. Trebilcock, Path Dependence, Development, and the Dynamics
of Institutional Reform, 59 U. TORONTO L.J. 341, 356
(2009).
[41]. For an estimate that
the average life-span of a written Constitution is 17 years, see Thomas
Ginsburg, Zachary Elkins & James Melton, The Lifespan of Written
Constitutions, THE RECORD ONLINE, 2009,
http://www.law.uchicago.edu/alumni/magazine/lifespan (last visited Dec. 13,
2009).
[42]. The Australian
Constitution, enacted in 1901, before independence, is a case in point. For
discussion of the significance of the changes that have occurred,
see, e.g., Sue
v. Hill [1999] HCA 30; (1999) 199 C.L.R.
462.
[43]. Anver M. Emon, The
Limits of Constitutionalism in the Muslim World: History and Identity in Islamic
Law, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES 258 (Sujit
Choudhry ed., 2008). More generally, see Khilafah al-‘Alam
al-Islami, Assessing the Constitution of Islamic States,
http://www.islamic-world.net/islamic-state/assessing_consti.htm (last visited
Sept. 20, 2009).
[44]. This
proposition is subject to any other constraints that might be imposed on the
sources of law to which a court might turn
as, for example, in federations with
dual court systems, of which the United States and Australia are
examples.
[45]. Jacques du Plessis,
Comparative Law and the Study of Mixed Legal Systems, in THE
OXFORD HANDBOOK OF COMPARATIVE LAW, supra note 5, at
477.
[46]. Jan Kleinheisterkamp,
Development of Comparative Law in Latin America, in THE OXFORD
HANDBOOK OF COMPARATIVE LAW, supra note 5, at 261,
268.
[47]. YOSIYUKI NODA,
INTRODUCTION TO JAPANESE LAW, ch. VII (Anthony H. Angelo trans., 1989)
(1976).
[48]. INDIA CONST. Part III;
cf. the Directive Principles of State Policy in Part
IV.
[49]. Andrew Byrnes, And Some
Have Bills of Rights Thrust Upon Them: The Experience of Hong Kong’s Bill
of Rights, in PROMOTING HUMAN RIGHTS THROUGH BILLS OF RIGHTS:
COMPARATIVE PERSPECTIVES 318 (Philip Alston ed.,
2000).
[50]. National Human Rights
Consultation, Report, ch. 5,
http://www.humanrightsconsultation.gov. au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads
(last visited Oct. 28, 2009).
[51].
Michaels, supra note 8, at 365
(2006).
[52]. ANUPAMA RAO, THE CASTE
QUESTION: DALITS AND THE POLITICS OF MODERN INDIA 167-78
(2009).
[53]. GLENN, supra
note 14, ch.1.
[54]. Cotterrell,
supra note
22.
[55]. Frankenberg, supra
note 5, at 446.
[56]. In fact,
homogeneity is unlikely across all the components of culture that are relevant
to constitutional comparison. See generally Cotterrell, supra note
22.
[57]. The point is illustrated by
the process followed for making the Constitution of South Africa. HEINZ KLUG,
CONSTITUTING DEMOCRACY, ch. 5 (2000). See generally, Vivien
Hart, Democratic Constitution Making, 107 SPECIAL REPORT, July
2003,
http://www.usip.org/files/ resources/sr107.pdf.
[58]. Nidhi
Eoseewong, The Thai Cultural Constitution, 3 KYOTO REV. S.E. ASIA (Chris
Baker trans.) (March 2003),
http://kyotoreview.cseas.kyoto-u.ac.jp/issue/issue2/index.html (noting
the disjunction between cultural constitution and successive written
Constitutions in Thailand that assists to explain why
“the constitution is
torn up often”).
[59]. JOHN
BELL, FRENCH LEGAL CULTURES, ch. 1
(2001).
[60]. AMARTYA SEN, IDENTITY
AND VIOLENCE: THE ILLUSION OF DESTINY, ch. 5
(2006).
[61]. Bonny Ibhawoh,
Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human
Rights in the African State, 22 HUM. RIT. Q.Y. 838, 848
(2000).
[62]. Relocation of the
Capital City Case, Judgment of Oct. 21, 2004, 2004 Hun-Ma 554, 566 (Const.
Ct.).
[63]. For one of many analyses
of the impact of internationalisation and globalisation on state constitutions
see Anne Peters, The Globalization of State Constitutions, in NEW
PERSPECTIVES ON THE DIVIDE BETWEEN NATIONAL AND INTERNATIONAL LAW 251, 251-52
(Janne Nijman & André Nollkaemper eds.,
2007).
[64]. The data is derived from
the Central Intelligence Agency, The World Factbook,
https://www.cia.gov/library/publications/the-world-factbook/index.html
(last
visited Dec. 17, 2009). Non-state polities included in these figures include
Hong Kong and Macao.
[65]. United
Nations, Growth in United Nations Membership, 1945-present,
http://www.un.org/en/ members/growth.shtml (last
visited Dec. 17, 2009).
These figures are imperfect for present purposes because they do not include
non-state polities or polities
that, for any reason, have not been admitted to
the UN, of which Taiwan is an example. The Constitutions or constitutional
instruments
of these polities nevertheless contribute to world constitutional
experience. These figures also include pre-existing states that
have only
recently been admitted to the UN including, for example,
Switzerland.
[66]. Thus they do not
include, for example, Hungary, where the Constitution of 1949 was extensively
amended following the fall of communism: CATHERINE DUPRé, IMPORTING THE
LAW IN POST-COMMUNIST TRANSITIONS
31
(2003).
[67]. E.g., YASH GHAI
& GUIDO GALLI, CONSTITUTION BUILDING PROCESSES AND DEMOCRATIZATION (2006);
VIVIEN HART, DEMOCRATIC CONSTITUTION MAKING (2003); DEVRA C. MOEHLER,
DISTRUSTING DEMOCRATS: OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING
(2008); ANDREW ARATO, CONSTITUTION MAKING UNDER OCCUPATION: THE POLITICS OF
IMPOSED REVOLUTION IN IRAQ (2009); Tom Ginsburg et al., Does the
Process of Constitution-Making Matter?, in 5 ANNUAL REVIEW OF LAW AND
SOCIAL SCIENCE 201 (John Hagan ed.,
2009).
[68]. Jiunn-Rong Yeh &
Wen-Chen Chang, The Changing Landscape of Modern Constitutionalism: East
Asian Perspective, 4 NTU L. REV. 145
(2009).
[69]. For a wide-ranging
survey, see Yash Ghai, A Journey Around Constitutions: Reflections on
Contemporary Constitutions, 122 S. AFRICAN L.J. 804
(2005).
[70]. S. AFR. CONST. 1996,
ch.2.
[71]. 2004 CHARTER FOR THE
ENVIRONMENT
(Fr).
[72]. CONSTITUTIONAL DESIGN FOR
DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? (Sujit Choudhry ed.,
2008), supra note 43; on “ethnic federalism,” see
CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF
ETHIOPIA.
[73]. Stephen Gardbaum,
The New Commonwealth Model of Constitutionalism, 49 AM. J. OF COMP. L.
707 (2002).
[74]. In 2007, it was
estimated that 120 countries allowed diaspora voting to some degree; a further 9
had it under consideration;
and 90 made no provision for diaspora voting. Nine
of the first group also provided representatives of the diaspora in the national
Parliament. See Andy Sundberg, Diaspora Voting Rights in 214 Countries of
the World (Apr. 3-4, 2008),
https://www.overseasvotefoundation. org/initiatives-summit2008-proceedings;
Andy Sundberg, Diasporas Represented in their Home Country Parliaments (Apr.
3-4, 2008),
https://www.overseasvotefoundation.org/initiatives-summit 2008-proceedings
(drawing on INTERNATIONAL IDEA, VOTING FROM ABROAD: THE INTERNATIONAL IDEA
HANDBOOK (2007)).
[75]. E.g.,
CONSTITUTION OF IRAQ, arts. 2, 3,
92.
[76]. See generally NEW
PERSPECTIVES ON THE DIVIDE BETWEEN NATIONAL AND INTERNATIONAL LAW, supra
note 63.
[77]. E.g.,
Grondwet voor het Koninkrijk der Nederlanden [Constitution of the Kingdom of the
Netherlands], arts. 91, 93.
[78]. See
the examples of Colombia, the Czech Republic, the Philippines and Romania cited
in HENRY J. STEINER, PHILIP ALSTON &
RYAN GOODMAN, INTERNATIONAL HUMAN
RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 1090 (3d ed. 2008). See
generally Tom Ginsburg, Svitlana Chernykh & Zachary Elkins,
Commitment and Diffusion: How and Why National Constitutions Incorporate
International Law, 2008 U. ILL. L. REV. 201
(2008).
[79]. This is so even in
dualist states: Fiona de Londraw, Dualism, Domestic Courts, and the Rule of
International Law, in IUS GENTIUM (Mortimer Sellers ed., forthcoming
2009). For an argument that draws on the principles of conflict of laws see
Karen
Knop, Ralf Michaels & Annelise Riles, International Law in Domestic
Courts: A Conflict of Laws Approach, 103 AM. SOC’Y INT’L L.
PROC. (forthcoming
2009).
[80]. E.g., S. AFR.
CONST. 1996, art. 39(1).
[81]. The
European Commission for Democracy through Law (the Venice Commission) is a
telling example. All 47 members of the Council
of Europe are members of the
Venice Commission; other non-European members in 2009 were Kyrgyzstan, Chile,
the Republic of Korea,
Morocco, Algeria, Israel, Tunisia, Peru and Brazil. Eight
other states are observers. See also International IDEA, which has 25 members
drawn from Africa, the Americas, Asia, Europe and
Oceania.
[82]. Jiunn-Rong Yeh &
Wen-Chen Chang, The Emergence of Transnational Constitutionalism: Its
Features, Challenges and Solutions, 27 PENN ST. INT’L L. REV.
89, 110 (2008); see also Mark Tushnet, The Inevitable
Globalization of Constitutional Law, 49 VA. J. INT’L L. 985
(2008-2009).
[83]. Examples range
from the International Association of Constitutional Law,
http://www.iacl- aidc.org/en/index.htm
(last visited Dec. 17, 2009) to the US based website Constitutionmaking.org with
its Comparative Constitutions
blog:
http://www.constitutionmaking.org/default.html (last visited Dec. 17,
2009).
[84]. For evolving outcomes of
research on the extent of this practice across a wide range of countries and
regions, see the activities
of the Foreign Law Interest Group of the
International Association of Constitutional Law. Interest Group: Use of
Foreign Precedents by Constitutional Judges,
http://www.unisi.it/dipec/en/interestgroup.php (last
visted Dec. 17, 2009).
[85]. See,
e.g., Supreme Court of Israel, Foreign Clerkships with the Supreme Court of
Israel, http://elyon1.court.gov.il/eng/Clerking_opportunities/main.html
(last
visited Dec. 17, 2009) (advertising for clerks from the United States, Europe
and Commonwealth countries for the purposes of
comparative law
analysis).
[86]. The Hong Kong Court
of Final Appeal Ordinance 1997 authorises the Court to invite judges from other
common law jurisdictions
to sit on the Court as a member of the Court. In
relation to the Pacific see, for example, Peter MacFarlane, Some Challenges
Facing Legal Strengthening Projects in Small Pacific Island States, 4 J.
COMMONWEALTH L. & LEGAL EDUC. 103
(2006).
[87]. For example,
Constitutional Court of Korea,
http://english.ccourt.go.kr/ (last visited Dec. 17,
2009); Justices of the Constitutional Court, Judicial Yuan, Taiwan,
http://www.judicial.gov.tw/ CONSTITUTIONALCOURT/EN/p01_03.asp
(last
visited Dec. 17, 2009).
[88]. For a
review of developments in three countries, the United States, Canada and United
Kingdom, see Chimène I. Keitner,
Rights Beyond Borders (Oct. 2, 2009)
(unpublished manuscript, available at
http://ssrn.com/abstract=1480886).
[89]. In
2008 the United Nations estimated that international migrants would constitute
3.1% of the total global population in 2010,
but the proportion varies between
regions, from 9.5% in Europe to 1.5% in Asia: United Nations, Department of
Social and Economic
Affairs, International Migrant Stock: The 2008 Revision,
http://esa.un.org/migration/ (last visited Dec. 17,
2009).
[90]. For a detailed
examination of this phenomenon see Symposium, The Evolving Concept of
Citizenship in Constitutional Law, 8 INT’L J. CONST. L.
(forthcoming
2010).
[91]. Cotterrell, supra
note 22.
[92]. See Armin von
Bogdandy, Constitutionalism in International Law: Comment on a Proposal from
Germany, 47 HARV. INT’L L.J. 223, 225 (2006) (explaining the
views of Christian Tomuschat on the role of international law in
“legitimating, limiting and
guiding politics”); Yeh & Chang,
supra note 82, at 101, 106, also noting that some the norms
of customary international law derive from common state practice and do not
require explicit
state
consent.
[93]. Tushnet, supra
note 82, at 987.
[94]. Yeh &
Chang, supra note 82, at
109.
[95]. Peters, supra note
63, at 271, 305.
[96]. Id. at
257.
[97]. Vicki C. Jackson,
Narratives of Federalism: of Continuities and Comparative Constitutional
Experience, 51 DUKE L.J. 223, 272
(2001).
[98]. For this reason, in the
context of private law, Teubner described such transplants as
“irritant.” Gunther Teubner,
Legal Irritants; Good Faith in
British Law or How Unifying Law Ends Up in New Divergences, 61 MOD. L.
REV. 11 (1998).
[99]. The
adoption of the Swiss style referendum for constitutional change by Australia,
with its culture of parliamentary sovereignty,
is an
example.
[100]. THE RULE OF LAW:
HISTORY, THEORY AND CRITICISM (Pietro Costa & Danilo Zolo eds.,
2007); Paul W. Kahn, Comparative Constitutionalism in a New Key, 101
MICH. L. REV. 2677
(2003).
[101]. These solutions in
turn become available for adoption elsewhere. For an example, see Werner Menski,
Indian Secular Pluralism and Its Relevance for Europe, in LEGAL
PRACTICE AND CULTURAL DIVERSITY 31 (Ralph Grillo et al. eds.,
2009).
[102]. Yeh & Chang,
supra note 82, at
122.
[103]. The use of foreign law
by the Constitutional Court of Indonesia is described by Justice Harjono in
“The Indonesian Constitutional
Court.” The judge emphasises,
however, that the external sources are not uses as the main source and are
confined to “carefully
studied . . . practices of the Constitutional
Courts of friendly countries.” Harjono, The Indonesian Constitutional
Court,
http://www.ccourt.go.kr/home/english/introduction/pdf/05.pdf
(last visited Dec. 17,
2009).
[104]. The adaptation of the
German Bundesrat to create the South African National Council of Provinces is
one example. Christina
Murray, Republic of South Africa, in
LEGISLATIVE, EXECUTIVE AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES 259
(Katy Le Roy, Cheryl Saunders & John Kincaid eds.,
2006).
[105]. Consider, for
example, the link between the logic of Marbury v. Madison, [1803] USSC 16; 5 U.S.
137 (1803) and the acceptance of written Constitutions as fundamental law
and the link between the theories of Hans Kelsen and the structure
and functions
of a specialist Constitutional Court. Theo Öhlinger, The Genesis of the
Austrian Model of Constitutional Review of Legislation, 16 RATIO JURIS
206 (2003). A similar point might be made about the link between the events
of the French Revolution and acceptance of the right of a
Nation to give itself
a Constitution: EMMANUEL JOSEPH SIEYèS, WHAT IS THE THIRD ESTATE? 119 (M.
Blondel trans. & S. E. Finer ed.,
1964).
[106]. H. Patrick Glenn,
Legal Families and Legal Traditions, in THE OXFORD HANDBOOK OF
COMPARATIVE LAW, supra note 5, at 421,
425.
[107]. In relation to private
law, see Esin Örücü, Family Trees for Legal Systems: Towards a
Contemporary Approach, in EPISTEMOLOGY AND METHODOLOGY IN COMPARATIVE
LAW, supra note 27, at
359.
[108]. Albert H.Y. Chen, A
Tale of Two Islands: Comparative Reflections on Constitutionalism in Hong Kong
and Taiwan, 37 H.K.L.J. 647, 651 (2007) (citing KARL LOEWENSTEIN,
POLITICAL POWER AND THE GOVERNMENT PROCESS 147-53 (1957), describing the
conception of a “normative” constitution as an essential ingredient
of the practice of authentic
constitutionalism).
[109]. CASS R.
SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 68
(2002).
[110]. See also, on
this point, the notion of a constitutional “tipping point” developed
by Victor Ramraj to describe
the point where “the politics of
constitutionalism irreversibly gives way to an entrenched constitutional culture
. . . ,”
in Victor Ramraj, Constitutional Tipping Points: Sustainable
Constitutionalism in Theory and Practice, Paper Presented at the Third
Asian
Forum for Constitutional Law (Sept. 25, 2009) (transcript available in the
National Taiwan University
Library).
[111]. Mattei,
supra note 3, at
23.
[112]. Id. at
28.
[113]. Id. at
35.
[114]. Id. at
14.
[115]. A range of perspectives
is canvassed in the papers on “Constitutionalism and Legal
Pluralism” in Symposium, Constitutionalism in an Era of Globalisation
and Privatisation, 6 INT’L J. CONST. L.
(2008).
[116]. TWINING,
supra note 2, at
232.
[117]. Nico Krisch, The
Case for Pluralism in Postnational Law (London Sch. of Econ. & Political
Sci. Law, Soc’y & Econ. Working Papers, No. 12/2009), available
at
http://ssrn.com/abstract= 1418707.
[118]. Solange
1, BVerfGE 37; Solange II, BVerfGE 73, Brunner, BVerfGE 89;
Solange III, 2BvE 2/08. See generally Jacques Ziller, Solange III,
or the Bundesverfassungsgericht’s ‚Europefriendlyness‘.
On the Decision of the German Federal Constitutional Court over the Ratification
of the
Treaty of Lisbon (Ana Julia Aliverti trans., 2009),
http://ssrn.com./abstract= 1474698.
[119]. Peters,
supra note 63, at
267.
[120]. Id.
[121]. See
Michaels, supra note 8, at 370 (on the conditions that ground
comparability for the purposes of the functionalist method). More generally, see
Catherine
Valcke, Comparative Law as Comparative
Jurisprudence—The Comparability of Legal Systems, 52 AM. J.
COMP. L. 713 (2004).
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