The State of Comparative Constitutional Law: A Democratic Critique

Abstract

I frequently felt a certain uneasiness when reading comparative constitutional law scholarship, but I did not understand why. After all, I enjoyed learning from the many insights legal academics are able to draw from constitutional developments around the world. I now think I understand the reason for that discomfort: comparative constitutional law scholarship operates under a conception of the nature of constitutions that is at odds with democracy or, more specifically, with what I will call ‘democratic constitutional theory’. The purpose of this paper is to defend that claim by examining the ways in which comparative constitutional law tends to reproduce, explicitly or implicitly, a particular view about what constitutions ought to do. Part I of the paper explains what I mean by ‘constitutional theory’ and contrasts dominant forms of liberal theorization with more democratic ones. Part II argues that, by operating under the liberal approach, comparative constitutional law scholarship frequently suffers from what I will call the problem of blind spots, the minimization of democracy, the sanitization of political conflict, and the problem of non-materiality. Part III concludes with a brief reflection about the potential democratization of the discipline.

Keywords: comparative constitutional law; constitutional theory; democracy; democratic constitutional theory; liberal constitutional theory