Theory of constitutional comparison - SelectedWorks

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From the SelectedWorks of sebastian müller-franken prof. dr
August 1, 2013
Theory of constitutional comparison
sebastian müller-franken, prof. dr
Available at: http://works.bepress.com/sebastian_muller-franken/1/
Theory of constitutional comparison*
Sebastian Müller-Franken**
I. Basics
1. Term and object
A theory of constitutional comparison does not compare constitutions by making statements
about the term and function of constitutions or by analyzing and regulating single
constitutional determinations and regulation complexes. Instead, it rises above the practical
handling of this academic field and asks on a theoretical level for the character, object and
method of constitutional comparison itself.
Constitutional comparison correlates two or more independent constitutional orders.1 Subject
matter is the constitution as legal basic system of states, not as regards content concepts of a
„constitutional
governance“,
which
are
not
bound
to
the
category
of
state
(“constitutionalism”).2 As a legally comparative subject it works out the similarities and
differences of constitutions, analyzes interactions and makes use of perceptions about one
constitutional order for the understanding of another.3 A main interest lies within the different
* English translation of the article Verfassungsvergleichung, in: Depenheuer/Grabenwarter (eds),
Verfassungstheorie, 2010, § 26, S. 885-928. The author thanks Viola Teubert for the translation.
** Professor for Public Law at the Philipps University of Marburg.
1
To the necessary independace of the legal systems, which are analyzed by constitutional comparison:
Ulrich Häfelin, Das soziologische Element in der rechtsvergleichenden Methode, in: Recueil de travaux
suisses présentés au VIIIe Congrès international de droit comparé, 1970, p. 87, 88.
2
Mark Tushnet, Comparative Constitutional Law: Cases and Materials, in: Reimann/Zimmermann (eds),
The Oxford Handbook of Comparative Law, 2006, p. 1225, 1230-1233; a counter concept which
transcends the state and gets its bearings as regards content elements of the comparison from the very
beginning (acceptation of constitutional principles, basic and human rights, judicial control of public
authority etc.): Norman Dorsen/Michel Rosenfeld/András Sajó/Susanne Baer, Comparative
Constitutionalism, 2003,p. 1 f., 10-16, 47-66 and passim. The commonly used translation of the term
constitutionalism with „Verfassungsstaatlichkeit“, see e.g. Rainer Wahl, Konstitutionalisierung –
Leitbegriff oder Allerweltsbegriff?, in: Festschrift für Winfried Brohm zum 70. Geburtstag, 2002, p.
191 with further evidence at fn. 1, does not meet the content, how its displays at hand. The term
Verfassungs“staat“lichkeit already implicates the reference to the so described type of wielding of
power to the category of the state and is therefore inappropriate to include also an interdependency
which is autonomous from the state, just as its described by the term „constitutionalism“. The content of
this term is, as proposed here, better met by the transcendent category of „verfassten Regierens“.
3
To the elements of constitutional comparison: Ernst Rabel, Rechtsvergleichung und internationale
Rechtsprechung, RabelsZ 1 (1927), 5, 7. The last mentioned aspect of constitutional comparison, the
feeding of understandings to one constitution into the understanding of another one, shows, that there
can´t be a „comparison“ in the true sense of the word. However, we also speak of constitutional
1
aspects of legal reality of constitutions.4 Not yet a contemplation of constitutional norms
provides an insight into the content, function and effect of constitutions, but only a
comprehensive substantive approach. Therefore, we have to take into consideration the use of
constitutional norms by the state bodies,5 the actual circumstances of power and furthermore
the social and economic background of the development of a constitution (genetical
approach), as well as its social impact (operational approach).6 Already the term of the subject
shows, that the examination includes a legally factual dimension. Compared to the term
„constitutional comparative law“, which only comprises positive law, the term „constitutional
comparison“ is consciously open to reality by leaving out the word „law“.7 Thus,
constitutional comparison is not only operated by actors of constitutional law, but also by
representatives of political philosophy8 and comparative political science9. Constitutional
comparison ranges above constitutions, which are correlated by the comparison, and resorts to
a meta-level. In the categories of system theory, constitutional comparison exceeds the limits
4
5
6
7
8
9
comparison at mere interpretation impulses from foreign law; Max Rheinstein, Einführung in die
Rechtsvergleichung, 1974, p. 12.
To the meaning of the different contexts of constitution: Karl H. Neumayer, Fremdes Recht aus
Büchern, fremde Rechtswirklichkeit und die funktionelle Dimension in den Methoden der
Rechtsvergleichung, RabelsZ 34 (1970), 411, 412-417; Thomas Fleiner, Rechtsvergleichung: Chancen
und Lehren für den Föderalismus, in: Festschrift zum 70. Geburtstag für Hans-Peter Schneider, 2008, p.
255, 260; extensive: Peter Häberle, Wechselwirkungen zwischen deutschen und ausländischen
Verfassungen, in: Merten/Papier (eds), HGR, vol. I, 2004, § 7, margin numbers 10, 26-29.
Rudolf Bernhardt, Eigenheiten und Ziele der Rechtsvergleichung im öffentlichen Recht, ZaöRV 24
(1964), 431, 440 f.; Helmuth Schulze-Fielitz, Verfassungsvergleichung als Einbahnstraße? in:
Blankenagel et al. (eds), Liber Amicorum für Peter Häberle zum 70. Geburtstag, 2004, p. 355, 363 f.
To these categories at the sociology of law in general: Ekkehard Rehbinder, Rechtssoziologie, 6th
edition, 2007, p. 2; in comparative law: Andreas Heldrich, Sozialwissenschaftliche Aspekt der
Rechtsvergleichung, RabelsZ 34 (1970), 427, 428 f.; early approachs: Ernst Rabel, Aufgabe und
Notwendigkeit der Rechtsvergleichung, RheinZ 13 (1924), 279, 282 f.; classical: Max Weber,
Wirtschaft und Gesellschaft. Grundriß der verstehenden Soziologie, 1st edition, 1922, in place cited
after the students edition, 5th edition, 1972, p. 195, whereby norm imaginations „come in consideration
both as result and, mainly, as cause or contributing cause“ of social direct relevant action of human
beings.
Cp. Karl-Peter Sommermann, Funktionen und Methoden der Grundrechtsvergleichung, in:
Merten/Papier (eds), HGR, vol. Bd. I, 2004, § 16, margin number 5. In this context Sommermann speaks
about „material“ instead of „real“ constitution and uses therewith a term, which does not describe the
actual situation of power after the current terminology, but describes unlike the formal constitution the
content of the fundamental rules of communities; to the terminology Matthias Jestaedt, Die Verfassung
hinter der Verfassung, 2009, p. 47-49 (see supra sub III.1., p. 10 f). However, there is no difference in
the cause.
Cp. Henning Ottmann, Geschichte des politischen Denkens, vol. Bd. 2, partial vol. 1, 2002, p. 99-103;
vol. 3, partial vol. 1, 2006, p. 33 f.
Cp. Samuel Phillips Huntington, Political Order in Changing Societies, 2nd edition, 1969, p. 93-98,
109-139, passim; Klaus v. Beyme, Die politischen Theorien der Gegenwart, 8th edition, 2000, p. 151176, particularly p. 160 f., 167.
2
of the system.10 By stepping out of the role as a participant and becoming an observer,11 the
comparator is comparable to constitutional theoretician and sociologists of law, who also
observe the law not from the inside, but from the outside.12 The comparator has to detach
himself from the terms of his own legal system, because they obstruct the view to the
paralellism of the duties, which have to be fulfilled by the compared constitutions. But an
exhaustive solution is just an ideal in terms of a heuristic idea which can not be reached, but
only be striven for. The development of a metalanguage, which paraphrases the rules of life
problems with own terms,13 may not help. Indeed, the general theory of the state offers neutral
terms, with which we can work. However, this possibillity only exists, if terms and the
problems which lay behind them, can be find in every compared legal system. A total
neutralisation of ones own persperctive is primarily not possible, because the process of
understanding is inevitable affected by ones own preconception.14 Therefore, the comparator
has to preserve his consciousness about the relativity of his own point of view..15
2. Perspectives of comparison
Objects of constitutional comparison can be constitutions of independant states (international
comparison) as well as federal systems within a federal state (intranational comparison);
certainly in the latter case, some normative characteristics, which depart from the
international comparison, partially ensue because the constitutions belong to the same legal
system16.17 The intranational comparison can refer to the constitutions of several federal states
(horizontal comparison) even though to the comparison of federal constitutions with the
constitution of the state (vertical constitution). In contrast, the comparison of norms within the
10
11
12
13
14
15
16
17
Karl-Peter Sommermann, Die Bedeutung der Rechtsvergleichung für die Fortentwicklung des Staatsund Verwaltungsrechts in Europa, DÖV 1999, 1017; see already Konrad Zweigert, Rechtsvergleichung,
System und Dogmatik, in: Festschrift für Eduard Bötticher zum 70. Geburtstag, 1969, p. 443, 448.
To the differentation of a participant and an observer perspective: Matthias Jestaedt, Das mag in der
Theorie richtig sein …, 2006, p. 17 f.
To constitutional theory: Jestaedt (supra note 7), p. 17-20, 24-29 (supra sub I.3., II.1.b., p. 2-4, 5 f.); to
the sociology of law: Niklas Luhmann, Das Recht der Gesellschaft, 1993, p. 16 f.
That way So Christian Starck, Rechtsvergleichung im öffentlichen Recht, JZ 1997, 1021, 1027.
Hans Georg Gadamer, Wahrheit und Methode, 6., revised edition, 1990, p. 272-274.
Gadamer (supra note 14), p. 274.
Cp. for the Basic Law article 28 paragraph 1 sentence 1. To distiguish the „external“ from the „internal“
comparison, the former is called the „actual“ comparative law, Konrad Zweigert, Artikel
Rechtsvergleichung, in: Strupp/Schlochauer (eds), Wörterbuch des Völkerrechts, vol. III, 2nd edition,
1962, p. 79, 80.
Bernd Wieser, Vergleichendes Verfassungsrecht, 2005, p. 18 with further evidence.
3
same constitution is not part of constitutional comparison.18 At this juncture, it is rather about
a systematic interpretation of norms, as it´s also practiced in constitutional law in accordance
to the general methodology.19 With regard to the temporal scope of validity of the compared
constitutions, the comparison can correspond to the ruling law (synchronal comparison) as
well as intertemporal to the past law, which is no longer valid (diachronic comparison).20 The
intention of constitutional comparison can be, to gain knowledge of each analyzed
constitution (symmetric comparison) or to define the content of just one constitution
(asymmetric comparison). By having a look at the extent of the access, we distinguish
between phenomenons, which are collectively attachted to a constitution, just as the theory of
rules, thematic structure or classification in the categories of contitutional doctrine
(macrocomparison) and an approach, which deals with single elements of the compared legal
orders (microcomparison); 21 but as a matter of fact, the microcomparison can not get by with
the macrocomparison, so that the differentation between these two perspectives becomes less
important.22 Eventually, object of the comparisom can be dogmatic questions,23 the
interpretation of single constitutional terms,24 actual incidents,25 as well as theoretical themes,
like questions of the function, style and decisive understanding of constitutions (substantive,
instrumental, programmatically, open etc.).26 The comparison of constitutions with
international agreements or organisational statutes of supranational organisations does not
deal with the legal system of states, which explains that we terminological can not talk about
vertical constitutional comparison in this context. Nevertheless, inter- and supranational law
is important for constitutional comparison, because it interacts with the national law. For this
reason the comparison of national constitutions with inter- and supranational law can be put
into the category of vertical contitutional comparison.
18
19
20
21
22
23
24
25
26
Helmut Strebel, Vergleichung und vergleichende Methode im öffentlichen Recht, ZaöRV 24 (1964),
405, 406.
Sommermann (supra note 7), § 16, margin number 2.
To the relation of comparative constitutional history to constitutional comparison: Wieser (supra note
17), p. 47; in general to the comparative history of law as a perspective of comparative law see: Max
Gutzwiller, Rechtsvergleichung in kontinentaler Sicht, in: Schweizerische Beiträge zum vierten
internationalen Kongress für Rechtsvergleichung, 1954, p. 3, 23 f.
Wieser (supra note 17), p. 25 f.; Hartmut Krüger, Methode und Funktion der Rechtsvergleichung im
öffentlichen Recht, in: Festschrift für Martin Kriele, 1997, p. 1393, 1405.
Georgios Trantas, Die Anwendung der Rechtsvergleichung bei der Untersuchung des öffentlichen
Rechts, 1998, p. 55 f.
BVerfGE 39, 1, 73 f., 81, 93.
BVerfGE 32, 54, 70; cp. to this the analyze by Jörg Manfred Mössner, Rechtsvergleichung und
Verfassungsrechtsprechung, AöR 99 (1974), 193, 228-241.
BVerfGE 7, 377, 415 f.
Walter Haller, Verfassungsvergleichung als Impuls für die Verfassungsgebung, in: Festgabe für
Thomas Fleiner zum 65. Geburtstag, 2003, p. 311, 317.
4
3. Historical Background
Constitutional comparison has a long traditon. Already the political science at ancient time
was interested in a comparative evaluation of the constitutions of the different hellenistic city
states.27 In Western Europe the study of foreign constitutions started with the enlightenment.28
In the first instance, just a few heads in France and Germany concentrated on the similarities
and differences of constitutions in a comparative way.29 But as soon as the idea of a written
constitution came up at the end of the 18th centuray, the inquisitiveness about different
principles of states increased. In fact, the revolutionary constitutional movements in Europe
and North America at this time did not develop their constitutional concepts seperate, but in a
process of mutual comparison and transfer.30 At the time of the German Confederation,
between the Congress of Vienna and the foundation of the Reich, the German faculties of
political science had to cope with a particularly constitutionally situation: the lack of nationstate unification needed to be remedied by developing a general german constitutional law.
The common german constitutional law was not about an applicable constitutional law of the
time, but rather a work of art, which was composed by the still applicable old law of the
Reich, the new federal law as well as the cross sum of the constitutional law of the single
states.31 In the time of the empire the general theory of the state worked out its forms of
government by consulting historical and contemporary comparative examples.32 The activity
27
28
29
30
31
32
Platon, Die Gesetze (Nomoi), 12th book p. 550-552 (951a-952d), in place cited after the new published
edition of the Rowohlt Taschenbuch Verlag which is published by U. Wolf, Sämtliche Werke, vol. 4,
22nd edition, 2006; Aristoteles, Politik, 2nd book, 1st chapter, p. 31, in place cited after the edition of
the Meiner-Verlag, Philosophische Bibliothek, vol. 7, unchanged reprint of the 4th edition 1990.
Daniel Thürer, Vom paradigmatischen Einfluss des Völkerrechts auf das Staatsrecht, in: Festschrift für
Peter Pernthaler, 2005, p. 385 f. The antithesis which is based on a publication from Johann Gottfried
Herder, and which signifies, that the enligthment was, beacuse of its truth claim, mental not yet ready,
does not exploit the source: Görg Haverkates, Idee der Vergleichung – von Herder zu Nietzsche, in: 75
Jahre Institut für ausländisches und internationales Privat- und Wirtschaftsrecht. Zugleich zum 70.
Geburtstag von Rolf Serick, Heidelberg 1993, p. 31-52; to the spirit of the enlightenment in the
„Federalist Papers“, which also influenced Europe, see e.g. No. 9 (Hamilton), p. 88-93; for the legal
comparative perspective e.g. No. 18, p. 135-141, as well as No. Nr. 19, p. 141-146 (both Madison with
Mailton), in place cited after the German edition of the C. H. Beck Verlag which is published by B.
Zehnpfennig, 2007.
Named are e.g. Charles de Montesquieu, De l’esprit des lois, Genf 1748, translaed into German and
published by Ernst Forsthoff „Vom Geist der Gesetze“, vol. I, II, 1951, p. 5 f., passim; Gottfried
Achenwall, Staatsverfassung der Europäischen Reiche im Grundriße, 3rd edition, 1756, p. 3, 31-33;
Johann Heinrich Gottlob v. Justi, Vergleichungen der Europäischen mit den Asiatischen und anderen
vermeintlich Barbarischen Regierungen, 1762, Vorrede; Jacques-Vincent Delacroix, Constitutions des
Principaux États de l’Europe et des États-Unis de l’Amérique, vol. I, 3rd edition, Paris, 1793, p. 5 and
passim.
Wieser (supra note 17), p. 9. f.
Starck (supra note 13), JZ 1997, 1021 f.
The following works from Hermann Rehm, Allgemeine Staatslehre, 1899, p. 1, 6 f.; Conrad Bornhak,
Allgemeine Staatslehre, 1896, Vorwort, p. III f.; Julius Hatschek, Allgemeines Staatsrecht auf
5
with foreign law changed in the 19th centuary, the „age of comparison“ (Nietzsche),33 its
character from an investigation of foreign law with a comparison of external and internal law
to an acadamic constitutional comparison.
But the history of constitutional comparison is not free from failures. Due to the autonomy of
private law in the single states on the one hand and the constitutionalization of government
within a national framework on the other hand, the comparison of public law in general and
constitutional law in particular experienced a cesura at the beginning of the 19th centuary.34
Unlike the pacification of legal disputes between privates,35 the handling of transnational legal
questions between states does not depend on a comparison of the solutions of the different
national constitutions, but comprises a normative order since the modern age in public
international law and found a home in the corresponding acadamic field. But finally, the
Europeanization and the phenomenon of „globalization“, caused by the collapse of the Soviet
Union and, as a consequence, multifaceted openings of the national constitutional spaces, led
to an entanglement and interdependence of national statehood, which increasingly aroused
interest in constitutional law and constitutional comparison.36 However, constitutional
comparison did not get beyond an additional science at universities.37
II. Functions of constitutional comparison
1. Predetermination by pre-governmental, international and supranational law or
independance of constitutions as preliminary question?
The size of province, which is attributed to constitutional comparison, is connected to the
question, how far the single constitutional law can be seen as predertermined by pregovernmental, international and supranational law.38 Representatives, who see the national
33
34
35
36
37
38
rechtsvergleichender Grundlage, 1909, Teil I, p. 20-23; Georg Jellinek, Allgemeine Staatslehre, 1900,
p. 20 f., p. 461-193, in each case passim, are all based on a comparative view of the constitutions from
European and non-European constitutions.
Menschliches, Allzumenschliches, 1886, Titel des Aphorimus No. 23, in place cited after the edition
from the Insel-Verlag, 1982, p. 36.
Michael Stolleis, Nationalität und Internationalität, 1998, p. 18 f.
To the necessity of comparative law in private international law: Gerhard Kegel/Klaus Schurig,
Internationales Privatrecht, 9th edition, 2004, p. 71 f.
Stolleis (supra note 34), p. 24-28.
Wieser (supra note 17), p. V.
In this way: Peter Häberle, Europäische Verfassungslehre, 5th edition, 2008, p. 221-232, and passim;
Thomas Würtenberger, Verfassungsänderung und Verfassungswandel: Von der nationalen zu einer
6
constitutional law mainly as a concretion of pre-governmental, international and supranational
requirements and ideas act on the assumption of a larger scope of function of constitutional
comparison than exponents, who put empahsis on the independance of every national
constitution. In the first case, the extraction of normative contents of a constitution would
only be possible, if initially the pre-, co- and superordinate norms would be comparative
sifted, prepared and the gained knowlegde supplied into the national constitutional law. If one
put emphasis on the independance of national constitutions instead, constitutional comparison
would only have the task to determine the differences and, as far as possible under this
assumption, similarities between the compared constitutions.
However, such a categorical confrontation does not meet the present situation of western
constitutional states. Faced with the choice, if constitutional law has to be understood as a
concretion of pre-governmental, international and supranational law or as an independant
national settling, one has to follow the second alternative: also in the present, the relationship
between the states regarding their constitutions is formed by their souveranity in terms of an
outward independance.39 Thereafter, international law does not have its original cause in
itself, but depends on an order from the national law, which validates the norm. The same
counts for the law of the European Union. Whose priority over the law of the member states
does not go back to a common basic norm,40 which encloses the European legal system and
the law of the member states and establishs a graduation of norms in an identical system, but
goes back to an own application cause, which steps besides the application cause of the
constitution of the respective state.41 The law of the European Union is not self-supporting,42
39
40
41
42
globalen Perspektive, in: Festschrift für Detlef Merten, 2007, p. 77, 87-90 (affirmative); to the
comparison of the fundamental rights as a question: Sommermann (supra note 7), § 16, margin number
15.
To this constituent of the term sovereignty: Albrecht Randelzhofer, Staatsgewalt und Souveränität, in:
Isensee/Kirchhof (eds), HStR, vol. II, 3rd edition, 2004, § 17, margin numbers 5, 23-34; Christian
Hillgruber, Souveränität – Verteidigung eines Rechtsbegriffs, JZ 2002, 1072, 1074.
To the primacy of the Community law: EuGHE 1964, 1251/1269 – Costa/Enel; to the idea of
independence of the European Community: Hans Peter Ipsen, Europäisches Gemeinschaftsrecht, 1972,
p. 61 f.
See BVerfGE 89, 155, 190; Josef Isensee, Vorrang des Europarechts und deutsche
Verfassungsvorbehalte – offener Dissens, in: Festschrift für Klaus Stern, 1997, p. 1239, 1261-1265;
Peter M. Huber, Der Staatenverbund der Europäischen Union, in: Ipsen/Rengeling et al (eds),
Verfassungsrecht im Wandel, 1995, p. 349, 350-352, 360; different view Häberle (supra note 4), § 7,
margin number 4: “... all forms of appearance of „Herrenideologien“ in the sense of states as the
,masters of the treaties‘ are an ideological ballast“.
Giovanni Biaggini, Die Idee der Verfassung – Neuausrichtung im Zeitalter der Globalisierung?, ZSR
119 (2000), 445, 467 f.
7
but its validity depens on an order of validity from the national law.43 For this reason, startingpoint of constitutional comparison can only be the coexistence of coordinated national
constitutional orders, not the idea of a network or scope of pre- governmental, international
and transnational constitutional texts.44
However, this comprehension does not mean, that constitutional comparison only performs a
limited function.45 Instead, constitutional comparison does have to cope with a lot of tasks.
The reason for this purpose lies within the fact, that states opened up themselves,
interconnected (with each other) and blended into an unity, to ensure safety and prosperity to
their citizens in times of globalization. Thus, a large part of European states joined forces in
the European Union, a confederation of states, as well as did even more in the European
Conventions on Human Rights to protect a minimum standard of human rights in their legal
order. To understand the bonds of the states, which come along with these unions, we need
constitutional comparative investigations.46 This view goes hand in hand with the idea of the
independance of constitutions, as we can see that agreements under international law are an
expression of state sovereignty.47
2. Overview
43
44
45
46
47
BVerfGE 89, 155, 190; cp. already Karl-Heinz Friauf, Zur Problematik rechtsstaatlicher und
demokratischer Strukturelemente in zwischenstaatlichen Einrichtungen, DVBl. 1966, 781, 785; to the
comparable integration clauses to article 23 paragraph 1 sentence 1 GG of the constititions of the
member states Ingolf Pernice, in: Dreier, GG, vol. II, 2nd edition, 2006, Art. 23, margin numbers 8-15.
To the legal theoretical untenability of the term „multilevel constitutionalism“: Matthias Jestaedt, Der
Europäische Verfassungsverbund – Verfassungstheoretischer Charme und rechtstheoretische
Insuffizienz einer Unschärferelation, in: Gedächtnisschrift für Wolfgang Blomeyer, 2004, p. 637, 641674.
As like this for the comparison of the fundamental rights Sommermann (supra note 7), § 16, margin
numbers 22-25.
To the necessity of minding the European Convention on Human Rights (ECHR) by interprating the
Basic Law: BVerfGE 74, 358, 370; 82, 106, 115; 111, 307, 315-317; analyze: Josef Isensee,
Verfassungsnorm in Anwendungsnöten: Artikel 18 des Grundgesetzes, in: Festschrift für Karin
Graßhof, 1998, p. 289, 311-314. The content of the guarantees of the ECHR has to be made accessible
by legal comparison, Franz Matscher, Vertragsauslegung durch Vertragsrechtsvergleichung in der
Judikatur internationaler Gerichte, vornehmlich vor den Organen der EMRK, in: Festschrift für
Hermann Mosler, 1983, p. 545, 550 f.; Christoph Grabenwarter, Europäische
Menschenrechtskonvention, 3rd edition, 2008, § 5, margin number 11. Likewise, the contents of the
fundamental rights of the European Union, which also bind the member states, Dirk Ehlers, Allgemeine
Lehren, in: id. (ed.), Europäische Grundrechte und Grundfreiheiten, 2nd edition, 2005, § 14, margin
numbers Rn. 33-36, have to be determined by legal comparison „from the mutual constitutional
traditions of the member states, Ehlers, I. c., § 14, margin number 9. To the overlap of the ECHR by
the law of the European Union: Matthias Ruffert, Die Europäische Menschenrechtskonvention und
innerstaatliches Recht, EuGRZ 34 (2007), 245, 248.
Anne-Marie Slaughter, International Law in a World of Liberal States, European Journal of
International Law 6 (1995), 503, 534-537; Andreas Paulus, Die internationale Gemeinschaft im
Völkerrecht, 2001, p. 1; Josef Isensee, Die vielen Staaten in der einen Welt – eine Apologie, ZSE 1
(2003), 7, 11 f.; Udo Di Fabio, Grundrechte als Werteordnung, JZ 2004, 1, 7.
8
Constitutional comparison can adduce multifaceted yields, which can not be listed conclusive
because of the dynamic in the development of states and society.48 Like comparative law in
general, constitutional comparison in particular pursuits different purposes. Therefore, we can
distinguish between purposes which are not targeted directly on the application of
constitutions on the one hand and application-oriented ones on the other hand. But the
classification of one purpose into one category can´t be strict. Generally, we strive for
perceptions to achieve applicatory goals and vice versa the application gives us an insight
which goes beyond the practical application.49
3. Perceptions without any purposes
Constitutional comparison can be practiced without any purpose.50 To get to know and
understand the „provison of solutions“51 in different communities on the field of contitutional
law is first of all an educational experience.52 The work with foreign legal orders opens up the
national perspective of the beholder53 and creates a distance to ones own legal system.54
During this process the comparator alienates himself from his familar legal order and gets a
different access to his well-known law. The constitutions of the different states become a foil
on which the outlines of ones own constitution emerge in a new light.55 The contrast effect to
the foreign law as well as the embedment of the constitution in its particular sociocultural
context and legal terms give the comparator the possibility to understand the substance of his
own constitution better (asymmetric comparison).56
48
49
50
51
52
53
54
55
56
To this supervision see already Walter Erbe, Der Gegenstand der Rechtsvergleichung, RabelsZ 14
(1942), 196.
Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 434 f.
Häfelin (supra note 1), p. 87, 91; Herbert Krüger, Stand und Selbstverständnis der
Verfassungsvergleichung heute, VRÜ 5 (1972), 5, 26; Wieser (supra note 17), p. 29-31.
This phrase is imputed to Ernst Zitelmann by Ernst Rabel (supra note 6), RheinZ 13 (1924), 279, 287,
and since then by many others.
Bernhard Großfeld, Rechtsvergleichung, in: Nordrhein-Westfälische Akademie der Wissenschaften,
Geisteswissenschaften, Vorträge G 374, 2001, p. 22 f.; Bernd Wieser, Vom Wesen und Wert der
Verfassungsrechtsvergleichung, juridikum 2004, 117.
Wieser (supra note 17), S. 17.
Stolleis (supra note 34), p. 28; Jack M. Balkin/Sanford Levinson, The Canons of Constitutional Law,
Harvard Law Review 111 (1998), 964, 1105.
Sommermann (supra note 7), § 16, margin number Rz. 69; this insight isnt new: Johann Wolfgang v.
Goethe: „Who knows no foreign languages, know nothing of his own“., in: Maximen und Reflexionen,
No. 1015, in place cited after the special edition to the 250th birthday of Goethe at 28.8.1999 from the
C.H. Beck Verlag, 1998, p. 508.
Joseph H. Kaiser, Vergleichung im öffentlichen Recht, ZaöRV 24 (1964), 391, 404; Haller (supra note
26), p. 311, 312.
9
At the same time, constitutional comparison tends to understand foreign constitutions by
working out similarities and differences between the diverse constitutional orders or single
elements of the constitutions and institutional arrangements (symmetric comparison).57 In this
context it is of high interest, to see whether constitutional rules have been proven in practical
application.58 Thus, a lot of states are based on comparable principles and therfore have to
cope with similar problems. For instance, a federal state is interested in seeing how a state
with a comparable system has solved a problem concerning his federal structure. The
intrigued state can detect in which environment and for which reasons the appropriate model
has fulfilled its task.59
4. Creating constitutional theory
In practical terms, constitutional comparison takes advantage of constitutional theory.60 The
function of constitutional theory is to compensate the narrow view of constitutional
dogmatics, which is caused by its task, and to ask for the sense and eligibilty of positive
constitutional law.61 For that purpose, constitutional theory differs between various terms of
constitution, which are correlated. Constitutional theory is, among other things, about a
comparison of the positive legal constitution with the ideal type of certain constitutional
models as well as about whose critique on the standard of an ideal constitution.62 Meanwhile,
the changing of perspectives between a normative-real, positive legal one towards the ideal
type of a certain constitution on the one hand as well as to the normative-ideal constitution on
the other hand can only partly be afforded by constitutional theory itself.63 To create the
standards of its comparison as well as its critiques, to cope with the complexity of its subject
„constitution“, constitutional theory also depends on knowledge of other neighborly acadamic
disciplines.64 At this point of constitutional theoretical reflection social science, constitutional
57
58
59
60
61
62
63
64
Wieser (supra note 17), p. 33.
See Haller (supra note 26), 311, 321.
The classification of the benefit of constitutional comparison to constitutional theory under the category
of practical purposes is not a contradictio in adjecto; to the practical importance of legal theory in
general and constitutional theory in particular: Jestaedt (supra note 11), p. 13 f. and passim; id. (supra
note 7), p. 40-96 (supra sub II.3.-IV.2., p. 9-22); in general: Pierre Legrand: „good practice requires
good theory“, in: How to compare now, Legal Studies 16 (1996), 232, 239.
Jestaedt (supra note 7), p. 40-44 (supra sub II.3., p. 9 f.).
Jestaedt (supra note 7), p. 51-53 (supra sub III.2., p. 12).
Jestaedt (supra note 7), p. 45-47, 51 f. (supra sub III.1.,2., p. 10, 12).
Jestaedt (supra note 7), p. 51 f. (supra sub III.2., p. 12).
10
comparison and other constitutional acadamics assert themselves.65 Their understandings
convey a more comprehensive view of general structural principles and single structural
elements of ideal types of certain constitutions as could be extracted solely from theoretical
considerations. For example, the ideal type of a constitutional-democratic constitution gains
contour and distinctiveness not yet by constitutional theoretical arguments, but only by
seperating its characteristics from the comparison of „lived“ constitutions, which can be
considered as appropriate to this type. Without constitutional comparison, constitutional
theory would be confined to a conflict about words, which would deductivly and speculative
remain without any correlation to reality of constitutional ideal types.66
But also the construction of a positivitätstranszendierenden ideal constitution does not
develop alone by constitutional theoretical „philosophy of constitutional law“.67 Thus,
constitutional theory depends on illustrative material of constitutional concepts and solutions
from which an ideal constitution can be formed; the configuration and preparation of this
material is provided by constitutional comparison.68 A constitutional arrangement can, on the
other hand, only be regarded as the desirable ideal of a constitution, if its norms are not only
valid in positive law, but can also assert themselves in legal reality. According to the
categoeries of Roscoe Pounds, to perform the leap from a „constitution in the books“ to a
„constitution in action“, only on the foundation of a sufficient knowledge, we can impute the
capability to rise from an applicable to a lived constitution.69
Conveyed by constitutional comparison, which contains both, normatives and realities of
constitution, constitutional theory provides an insight into the social and economic
background of the origin of a constitution as well as its social effect.70 According to questions
65
66
67
68
69
70
Martin Morlok, Was heißt und zu welchem Zweck studiert man Verfassungstheorie? 1988, p. 31-33;
To this function of comparative law in general: Léontin-Jean Constantinesco, Rechtsvergleichung, vol.
II: Die rechtsvergleichende Methode, 1972, p. 337.
To this function of constitutional theory: Jestaedt (supra note 7), p. 51 (supra sub III.2., p. 12).
Cp. to the relation of comparative law and legal theory Martin Morlok, Rechtsvergleichung auf dem
Gebiet der politischen Parteien, in: Tsatsos/Schefold/Schneider (eds Hrsg.), Parteienrecht im
europäischen Vergleich, 1990, p. 695, 701: Comparative law shall ensure the „grip“ of legal theoretical
efforts.
Roscoe Pound, Law in Books and Law in Action, American Law Review 44 (1910), p. 12-36.
Wieser (supra note 17), p. 20, 45. The related term “constitutional reality“, which has often been used in
this context, is mutable in its sense and is therefore tried to be avoided. It means in addition to the actual
situation of power in the sense of “real constitution“, as here, see e.g. Ludwig Adamovich, Artikel
Verfassung, in: Klose/Mantl et al (eds), Katholisches Soziallexikon, 1980, Sp. 3184, also the strenuous
interpretation of the constitution through the state bodies, as Dieter Grimm, Artikel Verfassung, in:
Staatslexikon der Görres-Gesellschaft, vol. V, 7th edition, 1989, Sp. 633, 637, as well as the section of
11
which exceed the practical application of constitutional law, constitutional comparison ties in
with the knowledge of sociology of law, which explores the impact between law and society.71
Constitutional comparison differs from the sociology of law by primary dealing with the legal
norm itself and secondary with the social background, which provides only an illustrative
function. The sociology of law instead deals with the ontologically cohesions of law and
society.72
The relation between constitutional comparison and constitutional theory can be described as
the first one provides assistance and retrievalservice to the second one.73 But the relationship
of these two disciplines can not be limited to an unilateral taking the one from the other.
While constitutional comparison takes the perspective of an observer to the investigated
constitutions and detaches itself from its terms of systematic74 to describe its object of
investigation, constitutional comparison in return requires constitutional theory as a
descendant of the general political science, which, as far as available and possible, provides
neutral categories and terms.75 The proportion of these two subjects can be best described as
division of work.
5. Constitutional politics
Constitutional theory is not limited to a critique of the positive legal constituion, but
furthermore strives for a change of the status quo.76 In its function as an acadamic „policy of
constitutional law“, constitutional theory again benefits from constitutional comparison in
many respects. Thus, constitutional comparison provides an orientation in the process
constitution drafting. In addition constitutional theory obtains arguments for the reform
political discussion. However, constitutional comparison doesn´t initiate an unification of
constitutions, but sets a limit to such attempts.
71
72
73
74
75
76
reality, which shall be regulated by the constitution, which means the „range of norms“ in the sense
Friedrich Müllers, Juristische Methodik, 7th edition, 1997, margin numbers 232, 482.
To the relation of comparative law and the sociology of law: Heldrich (supra note 6), RabelsZ 34
(1970), 427, 429 f.; see also Häfelin (supra note 1), p. 87, 96-104.
Häfelin (supra note 1), p. 87, 96 f.; Wieser (supra note 17), p. 28.
See also supra sub I.1.
See also Jestaedt (supra note 7), p. 15-17 (supra sub I.2., p. 2), to the question whether the general
political science found next to the constitutional theory a further descendant with the theory of the
states.
Jestaedt (supra note 7), p. 51 f. (supra sub III.2., p. 12).
12
a) Orientation at the drafting of a new constitution
The drafting of a new constitution does not occur as a spontaneous act in terms of a „juristic
big bang“.77 In political reality, constitutions rather originate in dependance on former
constitutions as well as, „the less the people are bound to the usage“,78 on comparison with
constitutions of other states. That way, not only the draftings of constitutions in the 20th
century before and after the second world war as well as in the recent past in the reform states
of the former Eastern Bloc after the implosion of the Soviet Union, but already the
revolutionary constitutional movements in the 18th and 19th century in reference to
constitutional ideas, which were developed in other states, were designed and implemented.79
In the process of constitution drafting constitutional comparison provides an orientation about
control theories and differences, which make it easier to create an „effective“ constitution.80
b) Arguments in the reform political discussion
Though, constitutional comparison does not only play a role for the drafting of a new
constitution. Moreover, constitutional discourses about the reform of an applicable
constitution also get their ideas and arguments to a large extent from a consideration of the
constitution of other states. Constitutional comparison opens ones view to a palette of already
proven solutions and offers thought-provoking impulses for a better understanding of the
existing constitution.81 That way, the comparison of constitutions offers suggestions how to
solve constitutional problems with the solutions of other constitutions or rather helps, that the
problems not even arise.82 But the transfer of a foreign solution to another constitutional
arrangement is only possible, if the compared constitutions do not only possess the same
structure, but also, at least in the essential points, arise from the same social, economical,
77
78
79
80
81
82
Phrase: Paul Kirchhof, Die Identität der Verfassung, in: Isensee/id. (eds), HStR, vol. II, 3rd edition
2004, § 21, margin number 23; from the perspective of comparative law: William Elliott Butler,
Comparative Law and International Law, in: Bernhard (ed.), Encyclopedia of Public International Law,
vol. Bd. I, 1992, p. 699; lastly Heinrich Scholler, Bedeutung der Lehre vom Rechtskreis und die
Rechtskultur, ZVglRWiss 99 (2000), 373 f.
Friedrich Nietzsche (supra note 33), p. 36.
To the constitutional comparison roots of constitutions from the 18th and 19th century see sub. I.3; to
the constitution-drafting process at the end of the 20th century in Eastern Europe: Boguslaw Banaszak,
Die Bedeutung der rechtsvergleichenden Forschung für das Verfassungsrecht, in: Essays in Honour of
Professor Antal Ádám on the Occasion of his 75th Birthday, 2005, p. 23, 29-31; collectively Häberle
(supra note 4), § 7, margin numbers 1-20 and passim.
Haller (supra note 26), p. 311, 312.
13
cultural and historical context.83 Constitutional comparison would fail its function, if it would
like to access to an answer of a legal system, in which it is imbedded and in which it has
proven to be efficient, and exert this answer into a different legal system without worrying
whether this adoption from other traditions makes sense or works in a foreign regime; just
like the postmodern concept of „bricolage“84.85 For example, if we would like to implement
plebiscites into the Basic Law, we might refer to the Switzerland and their experiences with
this governmental instrument.86 But we also have to take into consideration, that plebiscites
have a long tradition in Switzerland and have to fulfill the function of a political opposition in
Switzerland because of the constant practice of a „consociational democracy“ in the Swiss
political system. Besides, the citizens of Switzerland, socially and culturally, do not provide
their state with the financial power for the purpose of the highest possible transfer payments,
but rather fund him thriftily.87 All these historical, political and social conditions differ from
the corrosponding situation in Germany.88
c) Not: harmonization of law
In contrast, the unification of law does not play a role in the field of constitutional
comparison. Herein, constitutional comparison differs from the comparison in the realm of
subconstitutional law, which accentuates the legal harmonization by supranational
organizations as well as the formulation of a union law („lois uniformes“) as main goals.89
The reason for this lies within the characteristic of the object of constitutional comparison
compared to the one of comparison in the field of subconstitutional law:
83
84
85
86
87
88
89
Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 437.
Development of the term Bricolage as the taking and handling of the straight given in anthropology:
Claude Lévi-Strauss, The Savage Mind (1962), 2nd edition, 1968, p. 16 f.
Openness for this concept in constitutional theory: Mark Tushnet, The Possibilities of Comparative
Constitutional Law, Yale Law Journal 108 (1999), 1225, 1229, 1285-1306; Daniel H. Foote, The Roles
of Comparative Law, Washington Law Review 73 (1998), 25, 36.
Andreas Glaser, Nachhaltige Entwicklung und Demokratie, 2005, p. 341-352, 380-386.
René A. Rhinow, Parteienstaatlichkeit – Krisensymptome des demokratischen Verfassungsstaats?,
VVDStRL 44 (1986), p. 83, 85-91; Hans Huber, Diskussionsbeitrag, VVDStRL 33 (1975), p. 124.
Instructive essay from a Swiss point of view: Thomas Hürlimann, Herr Steinbrück, Sie haben
Mundgeruch, FAZ No. 71 from v. 25.3.2009, p. 33.
For civil law: Heinz-Peter Mansel, Rechtsvergleichung und europäische Rechtseinheit, JZ 1991, 529,
530-534; for the law, which belongs to the scope of the European Union: Jürgen Schwarze,
Europäisches Verwaltungsrecht, 2nd edition, 2005, p. 77-79, 86 f.; for administrative law: Manfred
Bullinger, Zwecke und Methoden der Rechtsvergleichung im Zivilrecht und im Verwaltungsrecht, in:
Festschrift für Peter Schlechtriem zum 70. Geburtstag, 2003, p. 331, 342-344; for public law in general:
Trantas (supra note 22), p. 27-30.
14
–
constitutional comparison does not only refer to a section assumed within the
framework of the legal system, but, because of the priority of the constitution, moreover
refers to the basics of law and furthermore to the „ground“ on which these basics rest in
turn;90
–
the constitution deals with the inception, shaping and limiting of governmental power
as well as the relationship between state and individuals; though the inner system of the
state is less determined by an immanent objective necessity than it is the case of
abandonments in the sphere of subconstitutional law; the first and formost determing
factor for constitutions is the political will to create dynamic forces;91
–
constitutional law is the product of national sovereignty,92 which is characterized by
the idea of a nation, the unity of the public. Because of this, constitutions are more
affected by factors, which are linked to the nation as their subject of legitimation, than
all the other normative systems of rules: historical developments and experiences,
social and economical conditions, political convictions and beliefs, culturel and
religious heritage; the composition of constitutional law comprises not only rational,
objective-general traits but also subjective-specific ones, which are not predetermined
by sanity.
Constitutional comparison, which not only has to accentuate and investigate the similarities,
but also the differences of constitutions, as a matter of principles, questions the effort to
standardize. Bureaucratic notions of legal harmonization are bothered by established national
autonomy.93 In the field of law, constitutional comparison takes the role of a framework of
90
91
92
93
Rainer Wahl, Verfassungsvergleichung als Kulturvergleichung, in: Festschrift für Helmut Quaritsch
zum 70. Geburtstag, 2000, p. 163; already Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 432; id. to
the following.
Haller (supra note 26), p. 311.
Stolleis (supra note 34), p. 27.
Thomas Würtenberger, Grundgesetz und Verfassungstradition, in: Essays in Honour of Georgios I.
Kassimatis, 2004, p. 323, 325 f.; Häberle (supra note 4), § 7, margin number 26; Häfelin (supra note 1),
p. 87, 103. Pasquale Stanislao Mancini emphasizes, that one task of jurisprudence is, to identify and to
save the national singularities, the „originalità nazionale“, see e.g. id. in his also legal comparison
orientated Enciclopedia Giuridica Italiana, vol. I, Mailand, 1884, p. 3-4 (preface; in the original without
pagination). Mancini was the great opponent of Emerio Amaris, founder of the modern comparative
law, see: Erik Jayme, Rechtsvergleichung und Fortschrittsidee, in: Schwind (ed.), Österreichs Stellung
heute in Europarecht, IPR und Rechtsvergleichung, Österreichische Akademie der Wissenschaften,
Philosophisch-Historische Klasse, Sitzungsberichte, 526. vol., 1989, p. 175, 177 f.
15
references, in which the postmodern theory of legal comparison can find illustrative material:
the normativity of modernity, which strives for a joint world law, confronts on the realm of
constitutional comparison with the idea of acceptation of the plurality of lifestyles.94
6. Application of constitutional law (extraction of constitutional law)
Besides, constitutional comparison can render benefits for the application of constitutional
law (extraction of constitutional law).
Thus, constitutional comparison asserts itself as an „academic feeder“ of constitutional
theory, to resume the trail, not only with a view to future-oriented topics de constitutione
ferenda, but also according to current questions de constitutione lata. If we divide the
application of law (extraction of law) in a foreign-programmed section of legal cognition and
a self-programmed section of law-making,95 constitutional comparison can, in both stages of
the process, be applied in its function as a „feeder“ for constitutional theory: the knowledge
needed for the preconception of constitutions is affected by the authoritative constitutional
theory. Because firstly constitutional comparison inures to the benefit of the cognition of ones
own law, constitutional comprehensions pour into constitutional theory. The same applies for
the extraction of law. In this connection constitutional comparison matters for the
metapositive suprastructure of the constitution, because also the overall picture of the
constitution accrues not only from constitutional theoretical deliberations, but also needs a
constitutional comparative view.96 Indeed, cognitions of constitutional comparison do not hold
a normative binding force in the nexus of constitutional theoretical preconception as well as
academic policy of constitutional law, but merely have the character of a material
Regelhaftigkeitshypothese respectively of a legal political leading function; however, even
with this meaning, they unfold a real effect, which shouldn´t be underestimated.97
Furthermore, constitutional comparison plays a role at the application of law independant
from any involvement into the frame of constitutional theory. Because constitutions which do
not follow the concept of an open constitution, but understand themselves as a legal binding
94
95
96
97
Comparison of the theories on the example of civil law: Erik Jayme, Betrachtungen zu einer
postmodernen Theorie der Rechtsvergleichung, in: Jahresheft der Internationalen Juristenvereinigung
Osnabrück 7 (1997/98), p. 15-31.
Jestaedt (supra note 7), p. 89 f. (supra sub IV.2., p. 20 f.).
See supra sub. II.4.
Jestaedt (supra note 7), S. 93 (supra sub IV.2.b., p. 22).
16
standard of governmental acts,98 can not choose arguments of constitutional interpretation
freely, they need to constitute the opening towards a comparative perspective.99 The reasoning
with constitutional law, constitutional adjudiction and literature of foreign states has to prove
its identity as an „obligation“ to the constitution, as it applies to every point of interpretation.
To open up their contents, constitution as well as its rules of interpretation have to allow the
consultation of constitutional comparative aspects.100 This is essential regardless of the
importance of constitutional comparative arguments for the interpretation. Because of the
wideness and indefinteness of constitutional norms, they are even less accessible to a positive
interpretation than norms from other fields of law. Therefore, also a legally comparative
argument, which shall not be required explicitly for the solution, but can be adduced
confirmatively, might, at the end, tip the scales for a certain interpretation.101 The problem
with this effect of reasons in the process of the extraction of constitutional law is disregarded,
when we, in a relativizing intention, say, that constitutional comparative arguments are not
obligatory, but only an aid for a better understanding of ones own law.102 If one does not
manage to detect such an authorization in ones own law and if therefore carries constitutional
comparative arguments only as general reasonable contemplations or simple cosmopolitan
emphasis into the process of constitutional interpretation, one would miss the idiosyncratic of
jurisdiction103: the one, who applies the law, ranges beyond „statute and law“.
It´s most obvious, if the constitution itself demands a comparative procedure for its
application. In addition to the explicit order to the courts, to work legally comparative,104 a
constitution might also use terms, whose contents are not autonomous, but can only be made
98
99
100
101
102
103
104
Comparison of open constitution and obligatory frame constitution: Josef Isensee, Verfassungsrecht als
politisches Recht, in: id. /Kirchhof (eds), HStR, vol. VII, § 162, 1992, margin number 48.
See Sebastian Müller-Franken, Staatspraxis und Verfassungsauslegung, in: Festschrift für Josef Isensee
zum 70. Geburtstag, 2007, p. 229, 231 f.; Bernd Rüthers, Rechtstheorie, 4th edition, 2008, margin
number 707.
Tushnet (supra note 85), Yale Law Journal 108 (1999), 1225, 1231.
John O. McGinnis, Foreign to our Constitution, Northwestern University Law Review 100 (2006), 303,
305, 309-311; see in general Müller-Franken (supra note 99), p. 229, 231.
Like this Mössner (supra note 24), AöR 99 (1974), 193, 203; alike Vicki C. Jackson, Constitutional
Comparisons: Convergence, Resinstance, Engagement, Harvard Law Review 119 (2005), 109; Mark
Tushnet, „A Decent Respect to the Opinions of Mankind“: Referring to Foreign Law to Express
American Nationhood, Albany Law Review 69 (2006), 809.
To this hazard: Ludwig Adamovich, Rechtsvergleichung im Verfassungsrecht, in: Festschrift für Theo
Öhlinger, 2004, p. 200; to the singularity of jurisprudence: Winfried Hassemer, Politik aus Karlsruhe?
JZ 2008, 1, 6, 7-8; to the commitment of a judge to the law Christian Hillgruber, „Neue Methodik“ –
Ein Beitrag zur Geschichte der richterlichen Rechtsfortbildung in Deutschland, JZ 2008, 745 f.
Article 39 paragraph 1 lit. c of the Constitution of the Republic of South Africa (Act No. 108 of 1996),
available at: http://www.info.gov.za/documents/constitution/index.htm (Stand: 1.4.2009); further
examples: Susanne Baer, Verfassungsvergleichung und reflexive Methode: Interkulturelle und
intersubjektive Kompetenz, ZaöRV 64 (2004), 735, 738.
17
accessible by comparing them with legal-cultural standards of other states. Thus, the
prohibition of the VIII. Amendment of the Bill of Rights of the United States of America, to
impose „cruel and unusal punishments“, is created to be made accessible through a
comparison of the normative legal system as well as the practical enforcement of criminal law
in other states.105 Furthermore, whole systems of norms, whose content is determined by
constitutional comparison, can be made obligatory through a reference to a constitution, so
that the comparison, which is required in that context, becomes indirect significant for the
other one. One example for this is the European Convention on Human Rights. Whose
contracting states have commited themselves to adhere to the guarantees of the convention at
the implementation of their own fundamental rights. If a comparison of European
fundamental rights is needed to determine their content, this comparison will also assert itself
by implementing the national fundamental rights.106
If a constitution does not command constitututional comparartive considerations in particular
through the application of appropriate terms or in general through the reference of norms,
which can be opened up by a comparison, a comparative procedure can still prove itself as an
acceptable aspect of the application of constitutions through general methodical rules.107
Authoritative for this is the theory of constitutional comparartive interpretation: if one is of
the opinion, that the target of interpretation is the detection of the objectified will of the
constitution, comparative arguments can be established under the aspect of teleological
interpretation. A constitution is suppossed to establish, form and limit governmental power.
Therefore the „functioning“, which means the practical effectiveness of one state, is an
integral element of its system.108 Consequently, constitutions have to be interpreted in a
manner, which enables and gives them practical effectiveness.109 If one way of interpretation
has been proven in an assimilable state, the idea of teleological construction suggests to adopt
this alternative. Such an argumentation with a foreign constitution does not declare the will of
another nation as authoritative and therefore does not change the legitimatory basis of ones
105
106
107
108
109
See Tushnet (supra note 85), Yale Law Journal 108 (1999), 1225, 1233; in the Basic Law, the term
„general rules“ of public international law of article 25 accords an analogical request, to determine its
contents through constitutional comparison, see: Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 445.
Jochen Abr. Frowein, Zur Lage der deutschen Staatsrechtslehre nach fünfzig Jahren Grundgesetz, DÖV
1999, 806, 809.
Jackson (supra note 102), Harvard Law Review 119 (2005), 109, 123.
Josef Isensee , Staat und Verfassung, in: id./Kirchhof (eds), HStR, vol. II, 3rd edition, 2004, § 15,
margin number 196.
Isensee (supra note 108), § 15, margin number 196; id., Verfassungsrecht als „politisches Recht“, in:
id./Kirchhof (eds), HStR, vol. VII, 1992, § 162, margin numbers 30, 83 with further evidence.
18
own constitution.110 Because it´s the own people who, as a constituent power, want an
efficient constitution themself and thereby legitimate the use of foreign law.
If one instead see the target of interpretation in the determination of the subjective will of the
constituent power, legal comparative arguments would only be acceptable by exhibiting the
will of the constituent power concerning that matter. It takes a historical-genetical evidence to
show that the constituent power wants to orient its legal system to principles and institutions
of another constitution.111 In that case, the contents of the constitution, which served as a
110
111
The assumption, legal comparison ideas are incompatibly with the principle of sovereignty of the
people, is the main objecion against this method of constitutional interpretation at jurisprudence and
constitutional law doctrine in the USA; for this purpose at jurisdiction e.g.: Stanford v. Kentucky, 492
U. S. 361, 369 note 1 (1989); Prince v. United States, 521 U.S. 988, 921 note 11 (1997) (see Breyer, J.,
followed by Stevens, J. – divergent opinion); Raines v. Byrd, 521 U.S. 811, 828 (1997); Knight v.
Florida, 528 U.S. 990 (1999); in literature Antonin Scalia, Commentary, Saint Louis University Law
Journal 40 (1996), 1119-1122; Jed Rubenfeld, Commentary, Unilateralism and Constitutionalism, New
York University Law Review 79 (2004), 1971, 1999; Richard Posner, The Supreme Court, 2004 Term:
Foreword: A Political Court, Harvard Law Review 119 (2005), 31, 88 f.; Roger P. Alford, Four
Mistakes in the Debate on „outsourcing authority“, Albany Law Review 69 (2006), 653, 660 f.; John O.
McGinnis, Contemporary foreign and international Law in Constitutional Construction, Albany Law
Review 69 (2006), 801, 804-808.
Since the mid-nineties of the last century a reconsideration takes place at jurisprudence and American
constitutional law doctrine, and an increasing streaming argues for a consideration of legeal
comparative arguments in constitutional interpretation; at jurisdiction: Atkins v. Virginia, 536 U. S. 304,
321 note 21 (2002) (see Rehnquist, Ch.J., followed by Scalia, J., und Thomas, J., divergent opinion);
Lawrence v. Texas, 539 U.S. 558, 577 (2003) (see Scalia, J., followed by Rehnquist, Ch.J., und Thomas,
J., divergent opinion); Roper v. Simmons, 543 U.S. 551, 577 f. (2005) (see Scalia, J., followed by
Rehnquist, Ch.J., und Thomas, J., divergent opinion); recently at literature: Anne-Marie Slaughter,
Judicial Globalization, Virginia Journal of International Law 40 (2000), 1103, 1112-1124; T. Alexander
Aleinikoff, International Law, Sovereignty, and American Constitutionalism: Reflections on the
Customary International Law Debate, American Journal of International Law 98 (2004), 91, 104-108;
Harold Hongju Koh, International Law as Part of Our Law, American Journal of International Law 98
(2004), 43, 55-57; Sanford Levinson, Looking Abroad When Interpreting the U.S. Constitution: Some
Reflections, Texas International Law Journal 39 (2004), 353, 357-365; Mark Tushnet, Referring to
Foreign Law in Constitutional Interpretation: An Episode in the Culture Wars, University of Baltimore
Law Review 35 (2006), 299, 309-312; Dan Farber, The Supreme Court, the Law of Nations, and
Citations of Foreign Law: The Lessons of History, California Law Review 95 (2007), 1335, 1355-1365;
Vicki C. Jackson, Multi-Valenced Constitutional Interpretation an Constitutional Comparisons: An
Essay in Honor of Mark Tushnet, Quinnipiac Law Review 26 (2008), 599, 667-669; comprehensive
appraisal of legal comparative considerations in the jurisdiction of the U.S. Supreme Court: Steven G.
Calabresi/Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred
Years of practice and the Juvenile Death Penalty Decision, William and Mary Law Review 47 (2005),
743-909.
See Fritz Münch, Einführung in die Verfassungsvergleichung, ZaöRV 33 (1973), 126, 127 f.; Kurt
Heller, Rechtsvergleichung und Verfassungsrecht, in: Festschrift Fritz Schwind zum 80. Geburtstag,
1993, p. 147, 152; Heinrich Triepel emphasizes the „democratic underground“, which was laid by
different states and on which the new German legal system is based, as a basis of constitutional
comparison in his often cited article, VVDStRL 3 (1927), p. 50.
19
model, can be significant for the interpretation of the constitution, which got inspired by the
first one.112
All in all, constitutional comparison does not become a „fifth method of interpretation“,113 but
it is necessary and, as shown, also possible, to implement arguments from foreign law under
the accepted rules of constitutional interpretation into the application of law. Depending on
the point of reference, the framework of teleological or the one of historical-genetical
construction comes into consideration.
However, legal comparative arguments are also subject to restrictions. First of all, the
problem of constitutional comparison, as with every other legal comparison, is how to choose
a state to compare with.114 If we prove a certain result of interpretation with one constitution,
we may often find a contrary position by consulting another constitution. Since it is hardly
possible, nor sensible to integrate all constitutions of the world into every legal comparison,
but instead to work with just a few constitutions, the selection of the used constitutions may
already have an impact on the desired result. Because of the potential relevance of every
argument, this problem can not be solved by giving comparative arguments only a
confirmatory, controlling role, but not – apart from the cases, in which a normative
constitutional interpretation is directed – one which is decisive for the result of the
interpretation.115 Another possibility may rather, to disclose the selection criteria and to make
oneself aware of the structural weakness of comparative legal arguemnts.
One also has to take into consideration, that constitutions, in addition to their often verifiable
orientation on foreign constitutional and political ideas, always form standards and coin
institutions, which, as shown, are based on own historical experiences, cultural impressions
112
113
114
115
To the orientation of the Basic Law on ideas of the US American constitution: JöR N.F. 1 (1951), 279,
352, 409, 548, 796, 898; Carlo Schmid, Erinnerungen, 1979, S. 368-370; Helmut Steinberger, in:
Henkin/Rosenthal (eds), Constitutionalism and Rights, Columbia University Press, New York/Oxford,
1990, p. 199, 212-216.
The terms „mother-constitution“ and „daughter-constitution“, which are often used in this context,
implicate a genetical historical family relationship in the sense of an in-line absorption. With a few
exceptions, constitutions are generally composed of different elements (such as domestic traditions,
foreign role models and independent innovations), so that these terms are a misleading simplification of
the contexts, Wieser (supra note 17), p. 108.
However, like this Peter Häberle, Grundrechtsgeltung und Grundrechtsinterpretation im
Verfassungsstaat, JZ 1989, 913, 917; in favour of the interpretation of the basic rights Fritz Ossenbühl,
Grundsätze der Grundrechtsinterpretation, in: Merten/Papier (supra note 4), § 15, margin number 31 f.
See Christian Walter, Dezentrale Konstitutionalisierung durch nationale und internationale Gerichte:
Überlegungen zur Rechtsvergleichung als Methode im öffentlichen Recht, in: Oebbecke (ed.), Nichtnormative Steuerung in dezentralen Systemen, 2005, p. 205, 221-223.
See supra in the text with note 101.
20
and national myths.116 Besides, every constitution is a compromise, in which different beliefs
are summarized and balanced.117 There will always be indigenous ideas of law, which
originally accrue from the deep layers of the collective consciousness of a nation or from
reciprocal accomodation of its members, and which can not be leveled by comparative
considerations.118 But this does not mean, that „the acadamic limits […] have to coincide with
the political ones“;119 in fact comparison is also reasonable and necessary under this
assumption. However, this means, that it is always required to investigate the cultural context
of constitutional norms and their conditions of application, because differences might result
therefrom. A general presumption, whereby a variety of interpretation of ones own law at
newly emerged issues has to be rejected, if this interpretation is obviously highly
controversial at different constitutional systems,120 lacks a basis in comparative constitutional
law. Even new emerged constitutional questions might be answered on the basis of
established beliefs.121
7. Determination and development of general principles of law
Finally, constitutional comparison has to serve as a source of knowledge to international and
supranational law.122 Thus, constitutional comparison is an aid to detect the general principles
116
117
118
119
120
121
122
Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 443; Jan Kropholler, Comparative Law, Function and
Methods, in: Bernhard (supra note 77), p. 702, 704. Also the much criticized categorical rejection of
legal comparative arguments at constitutional interpretation is based on this context, Hans Nawiasky,
Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung, VVDStRL 3 (1927), p. 25,
26.
See Alexander Hollerbach, Ideologie und Verfassung, in: Maihofer (ed.), Ideologie und Recht, 1969, p.
37, 54-56; Andreas Voßkuhle, Verfassungsstil und Verfassungsfunktion, AöR 119 (1994), 35, 38-43.
BVerfGE 39, 1, 66-68, to the coining of the Basic Law by the experiences of the National Socialism. In
the case District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court completely
abandoned lgal comparative considerations regarding the question, how the right of private guns is
regulated in the law of other civilized nations of the Western civilization. The proceeding was about an
U.S. American myth, whose destruction by comparative law has not even been considered by a
divergent vote; see: Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, Harvard
Law Review 122 (2008), 246, 271. To the Basic Law, for example the law regulating the seperation of
church and state (constitutional church law) is an original construction, which would also subduct itself
from a legal comparative leveling; to the indigenous character of the German constitutional church law:
Josef Isensee, Die Zukunftsfähigkeit des deutschen Staatskirchenrechts, in: Festschrift für Joseph Listl
zum 70. Geburtstag, 1999, p. 66, 70-75.
Change with critical intention to jurisprudence in general: Rudolf v. Jhering, Vom Geist des römischen
Rechts auf den verschiedenen Stufen seiner Entwicklung, vol. I, 5th edition, 1891, p. 15.
In favor of such a role: Schulze-Fielitz (supra note 5), p. 355, 375 f., also under reference to the doctrine
„singularia non sunt extendenda“, p. 370; already to the inappropriateness (also) of this idea Hans
Nawiasky, Allgemeine Rechtslehre, 2nd edition, 1948, p. 135 f.; Karl Engisch, Einführung in die
Rechtswissenschaft, 9., edition obtained by Würtenberger and Otto, 1997, p. 129-132, 194 f.
Sample: Josef Isensee, Die alten Grundrechte und die biotechnische Revolution, in: Festschrift für
Alexander Hollerbach zum 70. Geburtstag, 2001, p. 243, 250-264.
To further goals (supra note 17), p. 31 f.
21
of law of civilized nations in terms of article 38 paragraph 1 lit. c of the Statute of the
International Court of Justice.123 Accordingly, the European Court of Justice has gained the
general princples of law, which the legal systems of the member states have in common,
through comparative work.124 Article 6 paragraph 3 EU, which was inserted by the Maastricht
Treaty and whereby the European Union respects the fundamental rights, as guaranteed in the
ECHR and as they result from the common constitutional tradtions of the member states as
genereal principles of Community law, stipulates this jurisprudence and since then demands
to determine the contents of the fundamental rights of the EU through a widespread
comparison in written law.125
III. Subject of constitutional comparison
1. Multiplicity of constitutions
So far, according to common language usage, we referred to „constitution“ as point of
reference of constitutional comparison. Constitution, however, is a multivalent term, so that
its use has to be substantiated. The result of the different functions, which constitutional
comparison has to satisify, is, that constitutional comparison can not find its object in only
one term of constitution. In fact, we need a different term in each case, depending on the task
of comparison.
2. Reference point of constitutional comparison
If constitutional comparison is supposed to give an insight into ones own as well as foreign
constitutions for the purpose of pure knowledge or the formation of constitutional theories, we
have, depending on the interest of knowledge, to distinguish between three terms of
constitution:
If the comparison wants to find out, in which constitutional status the state shall be, it refers to
the constitution in a normative sense. In order to explore the contents of the desired condition,
123
124
125
Zweigert (supra note 16), p. 79; closer Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 446-448.
EuGH, Slg. 1969, 419, 427, 428 (opinion of the Advocate General Roemer) – Stauder; Slg. 1970, 1125,
1135 – Internationale Handelsgesellschaft.
Würtenberger (supra note 93), p. 323 f.; to the history of this norm: Christian Walter, Geschichte und
Entwicklung der Europäischen Grundrechte und Grundfreiheiten, in: Ehlers (supra note 46), § 1, margin
numbers 20-33.
22
which means the legal substance, on which a constitution is based, the constitution becomes
subject of constitutional comparison in a substantive sense.126 But comparison would not do
justice to its aim, to gain knowledge about ones own and foreign law, if it would remain on
the level of the normative. If constitutional comparison, instead, also wants to provide a view
of the actual function of the examined constitutions, the term constitution needs to be
understood as real constitution as an expression of the positive balance of power within a
state.
The purpose of the comparison might also lie within the provision of arguments for the
reform political discussion and the provision of an orientation to the policy of constitutions
for the process of drafting a constitution by pointing out experiences from abroad. In this case
the same applies: the desired political order of other states (normative constitution), its
organization with regard to the contents (substantive constitution) and its implementation at
the power struggle of governmental reality (material constitution) is of interest for
constitutional politics. If the comparison shall also determine ones own position regarding
constitutional political reform attempts, the positive constitution in terms of an „overall
decision about type and form of political unity“ (Carl Schmitt), which upstreams the
normative constitution, appears.127 The positive constitution, as well as essential matters of
substantive constitution, is not at the disposal of desires for harmonization of constitutional
law, which are fueled by constitutional comparative considerations.
With regard to the constitutional comparison, which is done within the scope of the
application of law, we have to distinguish in the same way: if a constitution, by its terms or
through a reference to comparative norms, asks for opening up its contents through
constitutional comparison, or if it endores constitutional comparative deliberations in the
context of teleological or historical-genetical interpretation, the comparator can ask himself,
how the terms are understood in different constitutional orders as regards content (substantive
and normative constitutions) and how they are understood in real (material constitutions). As
to the emphasis of constitutional comparative arguments, like at constitutional policy in
relation to the immovable positions towards efforts of harmonization, the positive constitution
126
127
To the term substantive constitution see Jestaedt (supra note 7), p. 47 (supra sub III.1., p. 10 f.); diverse
the usage in Austria, where the term generally denominates the sum of „Normerzeugungsregeln“, cp.
Robert Walter/Heinz Mayer/Gabriele Kucsko-Stadlmayer, Bundesverfassungsrecht, 10th edition, 2007,
margin number 4; András Jakab, Die Dogmatik des österreichischen öffentlichen Rechts aus deutschem
Blickwinkel – Ex contrario fiat lux, Der Staat 46 (2007), 268, 269 (also to irregularities).
Carl Schmitt, Verfassungslehre, 1928, in place cited after the 8th edition, 1993, p. 20-36.
23
is added to the substantive constitution for the determination of the indigenous matter of an
constitution, which can not be leveled through constitutional comparison.
If constitutional comparison aims to assess the existence of general legal principles in
different states, we have to make distinctions as well: the comparison can find out, which
norms are applicable in the examined states (normative constitution), whereupon they are
focused with regard to the content (substantive constitution) and wether they are respected in
legal reality (material constitution).
The normative and in parts the substantive constitution is easily identifiable at external
attributes and therefore emerges at the formal constitution, which means the constitutional
text. It gives the comparator an idea on how the normative intended political order can be
constructed in a community. However, the constitutional charter is not a seperate object of
comparison, even not, if only the structures or the lingusitic styles of certain constitutions are
compared as such.
Because there is no pure form, the form always implicates the contents.128 Thus, terms at
different constitutions generally have a various meaning, which results from their social and
cultural context and which can not be opened up solely through an examination of the
constitutional charter.129 Therefore we are not even allowed to infer from textual consonances
of constitutions to a similar understanding of formal questions,130 „to compare legal
paragraphs“ (Rabel), is now common property, is not sufficient at any case.131
IV. Methods of constitutional comparison
1. In general
128
129
130
131
This understanding is relating to the history of ideas common property, cp. Johann Wolfgang v. Goethe:
„the content brings the form; form is never without content“, Paralipomena zu Faust, 2. Teil v.
11.4.1800, in place cited after the edition from the Insel-Verlag, p. 529; also Heinrich v. Treitschke:
„...mere forms do not exist“, Die Gesellschaftswissenschaft, Halle a.d. Saale 1927, in place cited after
Neudruck Darmstadt 1980, p. 62.
Sommermann (supra note F10), DÖV 1999, 1017, 1022; sample: Uwe Kischel, Vorsicht,
Rechtsvergleichung!, ZVglRWiss 104 (2005), 10, 11 f.
Hartmut Krüger (supra note 21), p. 1393, 1403.
Rabel (supra note 6), RheinZ 13 (1924), 279, 282 f.; Bruce Ackerman, The rise of world
constitutionalism, Virginia Law Review 83 (1997), 771, 794.
24
Constitutional comparison claims to be qualified as an acadamic fundamental discipline of
constitutional law. Thus, its procedure requires a method, which means a planned, certain
rules followed research approach to gather knowledge.132 However, a methodical procedure
does not call for a rigid corset. The method of a constitutional comparative investigation
moreover has to, like every method, act on whose concrete goals.133 If one, for example, wants
to make a statement about whether unwritten constitutional ideas were received first in our
own or a foreign constitutional text, one can describe and show such interactions with the
method of „Textstufenanalyse“.134 When it comes to compare constitutions in terms of dealing
with a particular objective problem, we possess, for this method of „functional constitutional
comparison“, certain basic rules from the general comparative law, with which such an
approach can be put in order.135 These rules are flexible enough, so that one does not need a
surrender of constitutional comparison to an aleatory-situational approach under
renouncement of any regular statement, as it is variously demanded,136 to do justice to the
diversity of situations.
2. Particularities of constitutional comparison
Indeed, an imitation of constitutional comparison to the rules of the functional method only
comes into consideration with modifications, since these rules have been developed mainly by
private comparative law.137 Comparative civil law primarily copes with transnational financial
or personal issues, where it mainly comes to finding a reasonable reconciliation of interests
between the involved persons. As shown, constitutional comparative law has a different
purpose. It refers to the organization of state power as well as the relationship between the
state and individuals. Therefore, the object of constitutional comparison is not determined by
132
133
134
135
136
137
Rudolf Eisler (ed.), Wörterbuch der philosophischen Begriffe, 4th edition, 1929, article method, p. 140
f.
Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 432; Kay Hailbronner, Ziele und Methoden
völkerrechtlich relevanter Rechtsvergleichung, ZaöRV 36 (1976), 190, 193; Strebel (supra note 18),
ZaöRV 24 (1964), 405, 406.
Peter Häberle, Textstufen als Entwicklungswege des Verfassungsstaates, in: Festschrift für Karl Josef
Partsch zum 75. Geburtstag, 1989, p. 555, 556-558 and passim; id., Die Entwicklungsländer im Prozeß
der Textstufendifferenzierung des Verfassungsstaates, VRÜ 23 (1990), 225, 227-296.
Trend: Konrad Zweigert/Hein Kötz, Einführung in die Rechtsvergleichung, 3rd edition, 1996, p. 32;
likewise Axel Tschentscher, Dialektische Rechtsvergleichung – Zur Methode der Komparatistik im
öffentlichen Recht, JZ 2007, 807, 810-816, whose methodological approach puts mainly the judgmental
element of constitutional comparison in the foreground; to the question of judgments at constitutional
comparison see infra sub V.
See Wieser (supra note 17), p. 27-29, 38-43; though still noncritical Kaiser (supra note 56), ZaöRV 24
(1964), 391, 402, favours a dependance of public law on civil law.
25
an immanent objective necessity, but by the political will of the fundamental forces.138 Hereby
constitutional comparison gets more ridden with prerequisites and more extensive than
comparative law based on an excerpt from the subconstitutional law and rises above whose
problems.139 The rules and institutions, which are the subject of comparison, are to a greater
extent influenced by national particularities, by historical developments, social forces,
political beliefs and cultural heritage than any other normative regulations. Thus,
constitutional comparison depends on findings from the sociology of law and legal history to
a higher extent than comparisons on the field of subconstitutional law.140 For example, the
constitutional struggles of constitutionalism in Germany are closely associated with the
political history of France, that both can only seen against this background.141 Consequently,
the varied elements of comparative law are differently weighted and provided with further
aspects at constitutional comparison.142
Furthermore, the doctrine of „legal families“, which was developed by private comparative
law, can not play the same decisive role at constitutional comparison.143 The idea of legal
families contains that certain typical legal structures, which can bei find in a variety of
jurisdictions, are classified in a few big groups and by doing this, the law can be arranged,
penetrated more sharply and thus, a „legal world map“ can be created. Although this idea
corresponds to an intellectual basic need, which can be find in every science, even at
constitutional comparison, in one or another way, we do not have a common foundation of
development which might be associated with substantive similarities of the constitutions, as it
can be assumed with Romance, German, Anglo-American, Arab or any othe legal family at
private law.144 At private law, the Roman legal family is based on the common idea of the
Code civil (1804), the German legal family has its origin in the historical legal school
(Savigny) and the Anglo-American legal family can be traced back to the tradition of
138
139
140
141
142
143
144
Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 432.
Wahl (supra note 90), p. 163; already Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 432.
Kaiser (supra note 56), ZaöRV 24 (1964), 391, 402; Haller (supra note 26), p. 311; cp. as well Basil
Markesinis, Rechtsvergleichung in Theorie und Praxis, 2004, p. 196.
Thomas Würtenberger, Legitimität, Legalität, in: Brunner/Conze/Koselleck (eds), Geschichtliche
Grundbegriffe, vol. 3, 1982, student´s edition, 2004, p. 677, 708, 710.
See Zweigert/Kötz (supra note 136), p. 64.
Kaiser (supra note 56), ZaöRV 24 (1964), 391, 397; Herbert Krüger (supra note 50), VRÜ 5 (1972), 5,
27; Zweigert/Kötz (supra note 136), p. 39 f.; Tschentscher (supra note 136), JZ 2007, 807, 810; in detail
Grote (supra note 144), AöR 126 (2001), 10, 16-37; obviously different view Starck (supra note 13), JZ
1997, 1021, 1026.
26
Common Law.145 Despite divergent trends, these points of references provide the foundation,
to establish substantive similarities between the jurisdictions. Constitutional law is lacking
such common ground. Thus, Great Britain only knows substantive constitutional law, whereas
the United States of America follow the idea of a written constitution. This example shows,
that already the „Anglo-American legal family“ lacks a common ground when it comes to
central questions of their concept. Conversely, we can find significant similarities beweteen
Germany and France as exponents of various conventional jurisdictions, because the
constitutional traditions of both states are based on the ideas of the French Revolution.146 The
practical application of the traditional legal family classification is therefore limited to the
civil law, in constitutional law however, it´s useless;147 legal families are factual relative.148
Instead of using the conventional legal families, at constitutional law we might divide
between democratic and undemocratic constitutions on a top level. However, the necessary
further differentation within the democratic constitutions on a deeper level is not possible in
the same way. The features which are offered as categorization either do not possess a
sufficient distinctiveness or are not suited to build legal families: basic constitutional choices
such as constitutional legality, the separation of powers or the protection of fundamental
rights are not sufficiently distinctive, since they can be find in every democratic
constitution.149 Indeed, we could distinguish constitutions more clearly by asking for the
establishment and role of constitutional jurisdiction within the constitutional system
associated with similar categorizations.150 However, legal families, at which a comparison
based on other issues than on constitutional jurisdiction can be supported by a representative
of this family and disregard other associated constitutions, can not arise from these
categorizations;151 this function of legal families, which just aspires a simplification of
comparison through a representation of multiple constitutions through one constitution in a
variety of legal questions,152 would remain unfilled.
145
146
147
148
149
150
151
152
Tschentscher (supra note 136), JZ 2007, 807, 810.
Kaiser (supra note 56), ZaöRV 24 (1964), 391, 400; Tschentscher (supra note 136), JZ 2007, 807, 810.
Münch (supra note 111), ZaöRV 33 (1973), 126, 136; Kropholler (supra note 116), p. 702, 706.
Zweigert/Kötz (supra note 136), p. 64.
Wieser (supra note 17), p. 112-115.
Cp. to a corresponding model in general comparative law, which choses the jurisdictions, which need to
be compared, by the type of solution for the single factual issues: Ulrich Drobnig, Methodenfrage der
Rechtsvergleichung im Lichte der „Internationale Encyclopedia of comparative Law, in: Festschrift für
Max Rheinstein zum 70. Geburtstag, 1969, p. 221, 225.
To this function of legal families: Friedrich Kübler, Rechtsvergleichung als Grundlagendisziplin der
Rechtswissenschaft, JZ 1977, 113, 114; Zweigert/Kötz (supra note 136), p. 40-42, 62.
27
3. Comparison – comparative law – constitutional comparison
a) General logic of comparison
Regarding its structure, constitutional comparison belongs, like every comparative law, to the
category of comparison and is therefore submitted to the general rules of this logic.153
Necessary for a comparison of two or more phenomens are always two things: Besides the
difference of the phenomens (not-identity) we need a characteristic, which those phenomens
have in common (tertium comparationis). Even constitutional comparison has to search for a
point of reference in a concerted tertium comparationis, which can then equally be contrasted
with ones own law as well as with foreign law.154
b) The tertium comparationis
According to general rules of comparison, the tie to an arbitrary consistency of the objects of
comparison is possible, however would bring only a nonspecific gain of knowledge.155
Die
Instead, comparison requires a targeted insight, if the tertium comparationis is involved into
the concrete cognitive interest. Initial point of the already introtuced functional method is the
perception,156 that all constitutions have to give answers to nearly the same constitutional and
political needs.157 For this reason, the tertium comparationis of constitutional comparison is
the concrete factual issue,158 which has to be satisfied by the compared constitutions.159 To
obtain a comparable constitutional political system, constitutional comparison has, as shown,
153
154
155
156
157
158
159
Sommermann (supra note 7), § 16, margin numbers 53-54.
Gustav Radbruch, Über die Methode der Rechtsvergleichung, Monatsschrift für Kriminalpsychologie
und Strafrechtsreform 2 (1905/1906), p. 422, 423; likewise: Sommermann (supra note 10), DÖV 1999,
1017.
See Stefan Huster, in: Friauf/Höfling (eds Hrsg.), Berliner Kommentar zum GG, C Art. 3 margin number
55.
See supra sub IV.1.
Münch (supra note 111), ZaöRV 33 (1973), 126, 143; Starck (supra note 13), JZ 1997, 1021, 1028;
Sommermann (supra note 10), DÖV 1999, 1017, 1023; Wieser (supra note 17), p. 39-42.
The terms change: organization problem, conflict, legal question etc.
For civil law: Zweigert/Kötz (supra note 136), p. 29 f.; for public law: Strebel (supra note 18), ZaöRV
24 (1964), 405, 419 f.; Herbert Krüger (supra note 50), VRÜ 5 (1972), 5, 20; Münch (supra note 111),
ZaöRV 33 (1973), 126, 139 f.; Schwarze (supra note 89), p. 80-82; Starck (supra note 13), JZ 1997,
1021, 1027, 1028 f.; Sommermann (supra note 10), DÖV 1999, 1017, 1023; for social law: Hans F.
Zacher, Vorfragen zu den Methoden der Sozialrechtsvergleichung, in: id. (ed.), Methodische Probleme
des Sozialrechtsvergleichs, 1977, p. 21, 37. Alongside factual problems, Wieser (supra note 17), p. 39 f.
also wants to chose constitutional institutions as point of reference. But if the function, for which they
serve, shall be decisive, there is no need for an independant comparison of institutions. Instead, the term
institutional comparative law, which was used by Max Gutzwiller (supra note 20), p. 3, 23 and which is
not very common nowadays, means the functional comparative law.
28
to detach itself from the terms of the compared legal orders, because they obscure the view to
the parallelism of the tasks; only the function, which has to perceive a constitutional
institution, is decisive.
In this connection, the comparsion has to follow the results of the legal sociological research
and include them in its considerations.160
The decison on the comparability of two constitutions from the perspective of fulfilling the
same function is, on its part, already the result of a comparison.161 The dilemma of a previous
comparison can not be avoided, however there are ways to deal with it pragmatically in the
comparative operation162: the comparator can either tie to already known structural similarities
respectively functional equivalence of the compared constitutions or has to work with
hypothesis of comparison; if the latter prove to be unfounded, the comparison might not be
continued and has to be stopped. However, the need for such a rupture declines from the
extent to which the comparator holds knowledge or obtains it.
c) Choice of the compared constitutions
A central problem of constitutional comparison, as of every comparative law, is the question
on which criterion the objects of comparison should be selected.163 Because of the multivalent
constitutional concept as well as the multifunctionality of constitutional comparison, the
selection of the material which needs to be compared depends on the purpose of the
comparison. However, the often in this context established theory, that only constitutions,
which have basically the same legal structure, are applicable objects of comparison,164 is not
correct in this generality. Rather, this theory only applies, if the goal of the comparison is to
clarify whether one solution, which has been proven successfully in one jurisdiction, can be
transferred to another one within the framework of constitutional politics or constitutional
160
161
162
163
164
Ulrich Drobnig, Rechtsvergleichung und Rechtssoziologie, RabelsZ 18 (1953), 295, 304-308; Konrad
Zweigert, Zur Methodenlehre der Rechtsvergleichung, Studium Generale 13 (1960), 193, 197;
Rheinstein (supra note 3), p. 20 f., 28 f., 118; Tushnet (supra note 85), Yale Law Journal 108 (1999),
1225, 1228.
Harsh criticism for this reason: Bernhard Großfeld, Neue Rechtsvergleichung, in: Festschrift für Dieter
Henrich, 2000, S. 211, 212.
Sommermann (supra note 7), § 16, margin numbers 55 f.; also to the following.
See supra sub II 6.
Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 437; similar priorities: Kaiser (supra note 56), ZaöRV
24 (1964), 391, 397; Mössner (supra note 24), AöR 99 (1974), 193, 214; Hartmut Krüger (supra note
21), p. 1393, 1404 f.
29
interpretation.165 Indeed, a similarity between the constitutions is required for the portability of
an answer from one legal order to another one.166 However, a comparsion of different
constitutions can also be of high interest.167 Thus, a comparison with the antithesis of ones
own constitution enables the state to formulate its own positions more clearly168 or even to
find its position by distinguishing itself from others.169 Furthermore, a comparison of different
legal systems may be revealing for the question of the origin of constitutional political
needs.170 Hence, different constitutions can be compared with each other; only the goal, for
whose sake the comparsion is carried out, is decisive.171
4.The three-stages-model of comparison
To compare constitutions in the light of a specific constitutional political system, we first of
all need knowledge about the legal solutions, which have been developed for this purpose.
Furthermore, the effect of these rules must be understood. At constitutional comparison
therefore, like at comparative law in general, an approach in three stages has been proven
appropriate: „to determine“, „to understand“ and „to compare“.172
At the beginning of every comparative constitutional investigation, one has to ask what
solutions the various constitutions have found for the constitutional political requirement,
165
166
167
168
169
170
171
172
Schulze-Fielitz (supra note 5), p. 355, 361 puts emphasis on this goal of comparison.
Wieser (supra note 17), p. 21; the in this context often used term „kinship“ between constitutions should
be avoided, because it evokes the same wrong associations such as the terms „mother constitution“ and
„daughter constitution“, for this purpose see above note 112.
Häfelin (supra note 1), p. 87, 91 f.; József Szabó, Comparative Constitutional Law: Its Possibilities and
Limits, ZÖR 21 (1971), 133, 143 f.
Wieser (supra note 17), p. 21 f.
In its case Roper v. Simmons, 543 U.S. 551, 577 (2005), concerning the imposition of the death penalty
on adolescents, who have not yet completed their 18th year of life at the time of the offense, the U.S.
Supreme Court alluds in its interpretation of the already mentioned terms „cruel and unusual
punishments“ in the second Ammendment of the Constitution of the USA, see suprasub II. 6., that only
seven states in the world execute this death penalty (Iran, Pakistan, Saudi Arabia, Yemen, Nigeria,
Congo and China). In its case Thompson v. Oklahoma, 487 U.S. 815, 830 f. (1988), which was about
the imposition of the death penalty against a 15-year-old, the court refers to the abolishment of the death
penalty in the former Western Germany, France, Portugal, the Netherlands and the Scandinavian states
as well as the circumstance, that also in the former Soviet Union the execution of adolescents of this age
was prohibited. Here, the U.S. Suprme Court rests its denegation of the death penalty in a legal
comparative way on the fact, that the USA can not put itself on the same level as illiberal, human rights
abusing states (Roper v. Simmons) respectively can not stay behind the standards of other liberal states,
if even the totalitarian, notorious inhuman antipode (Soviet Union) is diposed to protect this standard
(Thompson v. Oklahoma). In Germany, it was task of the eastern law resarch, not to fall below the
minimum standard of human rights during the existence of the Soviet Union.
Heldrich (supra note 6), RabelsZ 34 (1970), 427, 435.
To this general principle: Kropholler (supra note 116), p. 702, 706.
Originator: Constantinesco (supra note 66), p. 137-139, detailed exposure: p. 139-330; in the following:
Wieser (supra note 17), p. 42 f.; Sommermann (supra note 7), § 16, margin number 62.
30
which serves as the reference point of the comparison (first stage: „to determine“). Point of
origin is the normative (positive legal) constitution.173 Meanwhile, the substantive constitution
as its content does not already derive from the text of the constitution. The subconstitutional
law which also regulates the object must be added, too.174 At states, which do not have a
written constitution, the substantive constitution can only be made accessible through the
subconstitutional and unwritten law, which decides on the constitutional political basic
concept. Source of law within the meaning of comparative constitutional research is therefore
everything, which claims to form or help to form the constitutional life.175
In a further step, we have to unscramble the meaning of the compared constitutional norm
(second stage: “to understand“). In this connection, we have to apply the methodological rules
of constitutional interpretation, in fact, as far as it´s a question of a „foreign“ constitution
from the comparators point of view, we have to use the methodological rule of the
constitutional order to which the respective constitution belongs. Otherwise, there is a risk to
draw a misleading picture of the foreign constitution from ones own point of view.176
Thereby, we also have, in addition to the subconstitutional law, which, as well as the formal
law, belongs to the substantive constitution of one state and therefore had already been
incorporated at the first stage of the comparison („to determine“), to include the legal
framework of a universal legal system in which the compared norms and institutions are
written down.177 For instance, the range of the guarantee of property in a constitution can only
be grasped, if one visualises its expansion in civil property law, in public building and
national planning law as well as in other subconstitutional embodiements of freedom in the
property sector.178
To understand the role and impact of a constitution in social reality, the comparison has to
gaze at the handling of the norms by the courts and other governmental bodies (state practice)
as well as the actual existing situation of power. At states, where a constitution does not exist
respectively is only available rudimental, or where a constitutional jurisdiction is missing
173
174
175
176
177
178
See supra sub III.2.
Isensee (supra note 108), § 15, margin number 189; Peter Lerche, in: FS Steindorff, 1990, p. 897, 902;
id., in: FS Odersky, 1996, p. 215, 218.
Unlike Zweigert (supra note 161), Studium Generale 13 (1960), 193, 196, a normative demand is
relevant here, the actual active participation of the constitutional life is not enough.
Häfelin (supra note 1), p. 87, 93 f.
Sommermann (supra note 7), § 16, margin number Rz. 66 („context at a narrower sense“)
Häfelin (supra note 1), p. 87, 94.
31
respectively is only equipped with low authority or is little efficient for other reasons, the
actual handling of the constitutional order by the state bodies plays an important role.179
Besides, for the identification of the substantive content of single constitutional institutions
(micro comparison), it is necessary to include the aspects, which characterize the constitution
at large (macro comparison). Thus, it is of high importance for the understanding of single
constitutional statements, whether a constitution has to be grasped as a semantical,180
postmodern narrative181 or strict judicial order.182 If norms of a constitution shall not develop
forces which control the competition of political power as well as the behaviour of the state
bodies, but merely preserve the currently existing constellation of power or rather tell than
bind, they possess only a semantical respectively a narrative character, so that similiarities
with a strict juridicial constitution can not be ascertained from the outset. In this context,
constitutional comparison also has to give attention to the, the constitutional law upstreamed,
positive constitution in terms of an „overall decision about the form and type of political
unity“ (Carl Schmitt) of the compared constitutions. Thus, that´s where the norms of the
constitutional law primary receive their meaining from.183
However, insights on the methodologically correct interpretation of constitutional norms, their
normative surrounding within the universal legal system, their practical application by courts
and other state bodies, the situation of power, the characteristics which coin the constitution
as a whole, as well as the reasons behind the decisions are not sufficent to get a complete
picture about their importance in governmental reality. For this purpose, a study about the
influences of extra-legal factors like historical, political, economical sociological and
religious ones, the climatical imprinting of a society,184 its „state of mind“ as well as the
„attunement“ of its groups is required.185 Dealing with extra-legal reasons for the emergence
179
180
181
182
183
184
185
Typical sample: Great Britain; see Bernhardt (supra note 5), ZaöRV 24 (1964), 431, 434.
Category: Karl Loewenstein, Verfassungslehre, 2nd edition, 1969, p. 153-157.
To the category of the postmodern „narratives“, which means more narrative than binding norms: Erik
Jayme, Narrative Normen im internationalen Privat- und Verfahrensrecht, 1993, S. 35-38.
Baer (supra note 104), ZaöRV 64 (2004), 735, 738.
Schmitt (supra note 127), p. 23, 25.
Strebel (supra note 18), ZaöRV 24 (1964), 405, 409-413; Hartmut Krüger (supra note 21), p. 1393,
1399.
Häfelin (supra note 1), p. 87, 94 f.; Herbert Krüger (supra note 50), VRÜ 5 (1972), 5, 13; Sommermann
(supra note 7), § 16, Rz. 66 („Kontext i.w.S.“); cp. as well Wahl (supra note 90), p. 163, 166-176, in
whose four-level conception of comparative law a comparison of cultures is the final point of
comparison after an investigation of „text and interpretation“, the „connection of the system“ as well as
„the understandung of the state and the constitution”; cp. a classical sample of cultural characteristic of
a nation is the mythic significance of the idea of sovereignty of people, of constitutions as well as the
32
as well as the operation of the object of comparison in social reality plays a much more
important role at constitutional comparison than at the comparision of subconstitutional law,
because, as shown, constitutional law is coined by non-legal factors like no other field of law.
If constitutional comparison shall grant the character of a science and keep its practical
relevance, it may not be limited to mere description.186 The teaching of foreign law is not yet
comparative law.187 In a further step, we rather have to confront the reviewed models of
solution from various angels in the actual comparison (third stage: „to compare“). Similarities
and differences of design principles, institutions and rules of the compared constitutions have
to be elaborated und put together in superior groups; the reasons which explain the similarities
and differences have to be determined and arranged plus the relationship among the compared
constitutions needs to be understand.188
The demand, that the sum of the various parts has to be systemized in an ordered whole in a
final step,189 is ridden with precondition and should therefore not be maintained. Within the
requirement for a systematization of the solutions in constitutional law of various countries
lies the problem, that national law as basic raw material is often not systemized itself and
occasionally can´t be systemized or even may not want to be systemized. Thus, the
understanding of a judicial norm for example in the USA is, unlike on the European
continent, geared to facts, which means that the norm is not antecedent of the issue, but is
build by the former.190 Though, the development of a system can not be a reasonable goal for
science because facts do not make a system.191 Moreover, the term system has an
antiindividualistic, illiberal connotation, which is a further reason for making systematization
186
187
188
189
190
191
actions of the Supreme Court in the constitutional understanding of the U.S. citizens: Paul W. Kahn,
Comparative Constitutionalism in an New Key, Michigan Law Review 101 (2003), 2677, 2685-2705.
Mark Van Hoecke, in: id. (ed.), Epistemology and Methodology of Comparative Law, Oxford/Portland
2004, p. 165, 166 f.; Tschentscher (supra note 136), JZ 2007, 807, 809.
Wieser (supra note 17), p. 24. However, one can speak of descriptive comparative law, because a
foreign constitution can not be displays, without making comparative considerations at least inwardly;
see Zweigert (supra note 16), p. 79.
Constantinesco (supra note 66), p. 277-330; Fleiner (supra note 4), p. 255, 262 f.; Sommermann (supra
note 10), DÖV 1999, 1017.
Trantas (supra note 22), p. 87-91
Depiction: Oliver Lepsius, Was kann die deutsche Staatsrechtslehre von der amerikanischen
Rechtswissenschaft lernen?, in: Schulze-Fielitz (ed.), Staatsrechtslehre als Wissenschaft, 2007, p. 319,
320 f., 326-330; id. also to the following.
But this does not mean, that cases have to be decided in the sense of a „reasoning from case to case“.
Moreover, those who apply the law have to search for generalizable legal principles between the cases,
see Claus-Wilhelm Canaris, Theorienrezeption und Theorienstruktur, in: Festschrift für Zentaro
Kitagawa, 1992, p. 59, 60 f. with further evidence.
33
not a desirable content of science.192 The forsaken order of the examined constitution can
therefore only be geared to „internal“, i. e. considerations which are motivated by the matter,
but can not generate a unit in the meaining of a return to supporting common rationales.193
The constitutional comparative investigation ideally starts with the construction of country
reports, on whose basis the comparison can occur.194 But such an order of antecedent
abstraction and subsequent concretion is however not necessary.195 The foreign law can rather
be examined directly from the perspective of ones own law und the criteria of comparison
may then be developed dynamically in this process.196 However, also such an approach cannot
fail to recognize the compared law as such und understand it in its contents; without this
knowledge a basis is missing, to be able to compare constitutions rational.197
The various stages of comparison are not strictly seperated, but are in a relationship of mutual
dependency and complementary, since one relates to the other.198 There is neither a rigid
frame, which one completely has to pass through before making a constitutional comparative
statement. If one would like to come up to the sociological dimensions of constitutional
comparative issues, this would presuppose a legal-sociological knowledge, whose selfcontained investigation would at least require a considerable effort or would even exeed the
competence of the constitutional scientists.199 The method of comparative law would prove
itself to be of little use for legal practice.200 The requirements on the extent of a comparative
192
193
194
195
196
197
198
199
200
Lepsius (supra note 193), p. 319, 327.
To the categories order and unity as elements of the term of systematic at law see Claus-Wilhelm
Canaris, Systemdenken und Systembegriff in der Jurisprudenz, 1969, p. 12 f., 16, 40 ff., 156 and
passim; Eberhard Schmidt-Aßmann, Das allgemeine Verwaltungsrecht als Ordnungsidee, 2nd edition,
2006, 1/1.
Zweigert (supra note 161), Studium Generale 13 (1960), 193, 198; Wieser (supra note 17), p. 24 f.;
sample for such a scholastic approach: Thomas Würtenberger, Zur Geschichte des allgemeinen
Wahlrechts in vergleichender Perspektive, in: Festschrift zum 70. Geburtstag für Hans-Peter Schneider,
2008, p. 537-550.
Tschentscher (supra note 136), JZ 2007, 807, 815 f.; critical to this method also Oliver Lepsius, Themen
einer Rechtswissenschaftstheorie, in: Jestaedt/id. (eds), Rechtswissenschaftstheorie, p. 1, 6 f.
Constantinesco (supra note 66), p. 43-49, 88 f.; see lately Tschentscher (Fußn. 136), JZ 2007, 807, 812,
who talks about a „dialectical method“ of comparative law in this context.
Wilhelm Wengler, Gedanken zur Soziologie und zur Philosophie der Rechtsvergleichung, in: Mario
Rotondi, Inchieste di diritto comparato, vol. II (1975), p. 725, 726; Karl H. Neumayer, Ziele und
Methoden der Rechtsvergleichung, in: Recueil des travaux suisses présentés au IXe Congrès
international de droit comparé, 1976, p. 45, 52.
Constantinesco (supra note 66), p. 139, 238, 278.
Heldrich (supra note 6), RabelsZ 34 (1970), 427, 429 f.; Hein Kötz, Alte und neue Aufgaben der
Rechtsvergleichung, JZ 2002, 257, 263.
To the necessity of suitability of method also for the needs of legal practice Jestaedt (supra note 11), p.
9.
34
study therefore have to vary concerning the goal, which is pursued with the comparison.201 If,
for example, a specific constitutional question has to be answered, the analysis of the decision
of another constitutional court to a similar case may already give impetus to ones own
discussion.202 Such an approach does not comprise the character of a strict methodical legal
comparison, but the one of an advice to solutions on foreign law or on historical traditions of
the constitutional state.203 Therefore, it is only authoritative, not to draw conclusions which
exceed the basis of knowledge.204
V. Appreciation
1. The requirement
It is not self-evident that the conclusions of the comparison have to undergo an evaluation,205
like it is demnaded by many,206 who see this as a necessary culmination of the investigation
process. „Evaluate“ may not even mean, that the investigated constitutions, institutions or rule
models can be assigned to certain types und thereby classified judgemental; the required
evaluation for a typification is still part of the comparison itself and necessarily has to be done
by it. Furthermore, evaluations, which are necessary to obtain general rules of law from the
compared legal systems, are not meant, too;207 the evaluation at this also remains within the
theme of the previous comparison, since this question depends on, whether a rule, which is
not respected from every country but only from a few, agrees with the basic principles of the
constitutional orders of the community of states.208
Moreover, a substantive statement about the different solutions in terms of „better“ or
„worse“, which thereby goes beyond typification and the comparative formation of general
201
202
203
204
205
206
207
208
See Sommermann (supra note 7), § 16, margin numbers 78-80.
Sommermann (supra note 7), § 16, margin numbers 78-80.
To the „comparative law without actual comparison“ see already supra Rheinstein (supra note 3), p. 12.
Sommermann (supra note 7), § 16, margin numbers Rz. 65-67
To the disputes: Erik Jayme, Das Zeitalter der Vergleichung – Emerico Amari (1810-1870) und
Friedrich Nietzsche (1844-1900), in: Mazzacane/Schulze (eds), Die deutsche und italienische
Rechtskultur im „Zeitalter der Vergleichung“, 1995, p. 21, 27-29.
Wieser (supra note 17), p. 20, 22; Konrad Zweigert, Die kritische Wertung in der Rechtsvergleichung,
in: Festschrift für Clive M. Schmitthoff zum 70. Geburtstag, 1973, p. 403, 405 f.; Hans v. Mangoldt,
Rechtsvergleichung im öffentlichen Recht: Das Beispiel der Staatsangehörigkeit, StAZ 2000, 285, 290.
See Mansel (supra note 89), JZ 1991, 529, 530; Sommermann (supra note 7), § 16, margin numbers 7577.
35
principles of law, is targeted. Howevere, the problem of such a substance rating lies within the
fact, that the required scale can not yet be found in one of the compared constitutions.
Comparative law is a transnational science, which is supported by the idea of parity of legal
orders.209 Thus, only a scale, which lies on a level above the investigated norms, can be
considered. A dread, to valuate norms substantive at transcendental scales should not
villainised as „orientalisation“ overhasty.210 Instead, it can be, as the demand of Kelsens on a
concentration of jurisprudence to law,211 more seen as an expression of wise self-restraint of
comparative law. Beyond the norms, it´s about questions, which are part of (legal)
philosophy, ethics, but not jurisprudence.212 The reproach of a „colonial view“ on the law of
other states, which shall be expressed in a rejection of an evaluation of their solutions,213
redounds upon the ones who have raised it. It was just the idea of „progress in law“ as a
conventional scale of judgemental legal comparison, which enabled the countries of the „third
world“ to be in an inferior position for a long time.214
2. Possibility of appreciation
A rating for the constitutional comparison on the basis of equality of constitutional orders can
only be considered, if a scale can be find, which is accepted by every country and in which
the states can recognise their legal convictions. Such a scale can be find in an idea, which
goes back to the old European state philosphy and political ethics, but is now upraised to a
general principle of political ethics and every kind of constitutional order215: salus publica
suprema lex esto - the common welfare may be supreme law.216 Special or personal interests
209
210
211
212
213
214
215
216
The idea of a normative equalization of legal orders was most notably elaborated by Friedrich Carl von
Savigny, System des heutigen Römischen Rechts, vol. VIII, 1849, p. 27, in the theoretical foundation of
his conflict of laws; see for this purpose alredy supra sub II.1.
Like this e.g. Baer (supra note 104), ZaöRV 64 (2004), 735, 753, in reference to Dennis Davis, in:
Cheadle/Davis/Haysom (eds), South African Constitutional Law: The Bill of Rights, Durban, 2002, p.
745.
Hans Kelsen, Reine Rechtslehre, 2nd edition, 1960, p. 1, 72 f., 80, 84, 107 f., 201.
See Arthur Kaufmann, Rechtsphilosophie, Rechtstheorie, Rechtsdogmatik, in: Hassemer/id./Neumann
(eds), Einführung in die Rechtsphilosophie und Rechtstheorie der Gegenwart, 7th edition, 2004, p. 1:
„The philosophy of law is a branch of philosophy, not a branch of law.“
But like this Baer (supra note 104), ZaöRV 64 (2004), 735, 753, in reference to Gayatri Chakravorty
Spivak, A Critique of Postcolonial Reason, Harvard University Press 1999.
Jayme (supra note 93), p. 175, 187 f.; harsh criticism on evaluations also by Herbert Krüger, Zur
Einführung: Überseeische Verfassungsvergleichung, JuS 1976, 213, 215; see also Rodolfo Sacco,
Einführung in die Rechtsvergleichung, 2001, margin number 4.
Josef Isensee, Gemeinwohl im Verfassungsstaat, in: id./Kirchhof (eds), HStR, vol. IV, 3rd edition,
2006, § 71, margin number Rz. 1.
This term goes back to Cicero, De legibus, III, 8.
36
of state bodies shall not be the target of governmental actions, but the whole community.217
The question of the public weal establishes a standard, on which the action of every state is
measured.218
The content of what the public weal demands must be precisely determined in accordance
with the particular circumstances.219 In the present context this means, that the idea of
common welfare has to be broken down to the reference point of comparison: the point of
reference, on which the comparison is made, is the contitutional political system, for which
the constitutions have to find solutions. Therewith, the scale, on which the compared
constitutions can be judged, is formulated: we have to ask, which one of the examined
solutions achieves the defined social need most effectively in reality.220 The „social best“ can
be found at constitutional comparison in the particual factual need, which has to be
satisfied.221
But the diagnosis, that one legal solution has proved itself, is way more difficult at
constitutional law than at subconstitutional law. Constitutional law is less about solving
problems, which already adhere an immanent objective necessity, but more about the
integration of a particular country at the organisation of its public authority; the above
outlined characteristics of constitutional law in contrast to subconstitutional law also have an
217
218
219
220
221
Isensee (supra note 218), § 71, margin number 36.
Josef Isensee, Salus publica – suprema lex? in: Nordrhein-Westfälische Akademie der Wissenschaften,
Geisteswissenschaften, Vorträge G 407, 2006, p. 10.
Isensee (supra note 218), § 71, margin number 50.
Erik Jayme, Emerico Amari (1810-1870) und die Begründung der Rechtsvergleichung als
Wissenschaft, in: Festschrift für Karl Firsching zum 70. Geburtstag, 1985, p. 143, 155, 159 f.; to the
scale of the „concrete available task“ already Franz van Calker, Gesetzgebungspolitik und
Rechtsvergleichung, in: Festschrift für Paul Laband, 1908, p. 99, 102; to comparative constitutional law
nowadays Wieser (supra note 17), p. 20.
The old contestation whether comparative law has to be seen only as a jurisprudential method or as an
independant acadamic fundamental discipline of law, compared to the history of law, the theory of law
or the sociology of law, is also raised at constitutional law. Here and there, this problem can only be
answered in the latter sense: As a triad, consisting of the elements „knowing, understanding and
comparing“, constitutional law is a vehicle to gain knowledge about ones own as well as about foreign
constitutions; functional, it comprises a methodological character. However constitutional comparison
is not reduced to a descriptive function, but moreover features the here drafted independant evaluativenormative task; see Kaiser (supra note 56), ZaöRV 24 (1964), 391, 402; Wieser (supra note 17), p. 19 f.
with further evidence; classical: Radbruch (supra note 155), Monatsschrift für Kriminalpsychologie und
Strafrechtsreform 2 (1905/1906), 422 f.
To the scale of the „social best“ („l’archetipo dell’ottimo sociale“) already Emerico Amari, Critica di
una scienza delle legislazioni comparate, Genua 1857, in place cited after the new edition which comes
in two volumes and was inserted by Frosini 1969, vol. II, p. 207; to the relevance of Amaris see also
note 93.
37
impact at this point.222 The question, whether a rule and its evaluation have been proven
depends on social, historical and political coinage of the particular state, so that we can
usually make only relative statements.223
222
223
See supra sub II.5.c .
Kropholler (supra note 116), p. 702, 706 f.; Häfelin (supra note 1), p. 87, 104.
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