The State of Comparative Constitutional Law: What are Constitutions For?

Abstract

This article seeks to show that a significant part of the contemporary literature generally classified as comparative constitutional law, works under a conception of the nature of constitutions which at odds with democracy or, more specifically, with what I will call democratic constitutional theory. This argument is defended by examining some of the works of key comparative constitutional law scholars of this discipline such as Rosalind Dixon, David Landau, Tom Ginsburg, Aziz Huq, and Richard Albert. The goal is to identify the ways in which they reproduce, explicitly or implicitly, a particular view of what constitutions ought to do. This point of view, which can be identified as 'liberal', is characterized by understanding constitutions as mechanisms to constrain political power. As a result, they reflect some problems that what I will call the problem of blind-spots the minimization of democracy, the sterilization of political conflict, and the absence of materiality. I will argue that constraining the exercise of political power is not the only purpose attributable to a constitution: from the perspective of a democratic constitutional theory, a constitution should be understood as a mechanism aimed at facilitating popular self-government. This article is composed of three sections. First, it explains what I mean by ‘constitutional theory’ and contrasts dominant forms of liberal theorization with more democratic ones. Second, it contends that, by operating under the liberal approach, comparative constitutional law frequently suffers from the four problems listed above. Third, it concludes with a brief reflection on the potential democratization of the discipline.