Examining Constitutional Culture: Assisted Suicide In Ireland And Canada
(2022) 17(1) Journal of Comparative Law 85
33 Pages Posted: 3 May 2022
Date Written: January 1, 2022
Abstract
This article attempts to explore the depth and importance of “constitutional culture” in comparative constitutional law. The discipline of comparative constitutional law, as currently practiced, places a great deal of faith in theory and concepts to transcend or cabin culture. Constitutional concepts—such as rights, standards of review, deference etc.—are often framed as being theoretical and conceptual and thus capable of ready comparison, analysis and even transplant between legal systems. In doing this, convergence around conceptually-dictated practices is focused on, and divergences and differences are written off in one of two ways: either as misapplication; or as questions of extra-legal (and thus of marginal relevance) “thick” culture, “Culture” with a capital “c”—thick moral disagreements that might lead concepts to play out in different ways, but that do not compromise the integrity of the concepts with which they interact. In this article, I argue that there is a layer of local constitutional culture—suppositions, values, precepts, beliefs about legal and constitutional values —in legal systems that is underexplored in comparative constitutional law, and causes inevitable and deep local differences in constitutional concepts that defy theoretical explication. These difference make convergence between systems impossible or highly problematic, and threaten the goals and aspirations of the discipline. There are, however, significant epistemological and methodological challenges to knowing this culture. I employ a methodology termed comparative localism – a detailed comparison of two similar jurisdictions, Canada and Ireland, in the context of constitutional cases on assisted suicide – to attempt to reveal constitutional culture imperfectly, and illustrate the scale of the challenges it poses to the discipline. I conclude by considering what the consequences of this “cultural” critique are if it is correct, and tentatively suggesting a more difference- and divergence-oriented approach to the discipline which I term “differential comparative constitutional law”.
Keywords: constitutional culture, assisted suicide, Ireland, Canada, proportionality, right to life, comparative law methodology
Suggested Citation: Suggested Citation