The Place of Constitutional Law in the Legal System

OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW, Michel Rosenfeld and András Sajó, eds., Oxford University Press, 2012

UCLA School of Law Research Paper No. 12-07

31 Pages Posted: 16 Mar 2012 Last revised: 26 Mar 2012

Stephen Gardbaum

University of California, Los Angeles (UCLA) - School of Law

Date Written: March 15, 2012

Abstract

If one takes a broad, panoramic perspective on comparative constitutional law, the familiar narrative of the rise of world constitutionalism suggests a fairly straightforward and uniform answer to the most general question of the place of constitutional law in a legal system. So, too, the logically prior question of what constitutional law is. The “postwar paradigm” posits in its essential features, first, that constitutional law is the law codified in a country’s written constitution, mostly establishing the ground rules of government and protecting certain basic rights, and second that this law sits at the apex of its legal system. It is the supreme law of the land, entrenched to reflect and preserve its primacy, and authoritatively interpreted and applied by a high court with the power to set aside conflicting non-constitutional law.

Zooming in, however, on the theory and practice of constitutionalism in certain specific contexts reveals that both questions have recently become interestingly more complex and the answers provided more nuanced and diverse. So, for example, what constitutional law is and the line between it and other law, what forms it can take and the judicial techniques it may employ, have been helpfully complicated by the development of theories of both the common law and the statutory constitution in various English-speaking countries in recent years. Similarly, three different views of the general place of constitutional law in a legal system have been defended or described in different contexts, which form a spectrum running from political to legal constitutionalism, and finally to what may be called “total constitutionalism.”

Less globally, and perhaps also more familiarly, there are robust ongoing practical and scholarly debates about the place of constitutional law in certain specific areas of a country’s legal system. Thus, the old question of the relative importance and centrality of constitutional law to issues of rights protection versus governmental structure has been raised in a surprising variety of contexts and with interestingly different conclusions in recent years. The issue of the scope of constitutional law within the sphere of private conduct/private law has been a prominent one in recent bouts of constitution-making and judicial implementation, triggering much scholarly interest. Similarly, the debate about the role of constitutional law versus legislative politics in securing social and economic welfare has been enlivened and extended by recent experience, particularly in South Africa and Eastern Europe.

Overall, this increasingly rich literature suggests the importance of a genuinely comparative perspective that takes contextualized constitutional discourses seriously and results in distinct and broader conceptions of constitutional phenomena than provided by either purely domestic constitutional law or more abstract, philosophical reflection. Here, as elsewhere, focus on both sameness and difference, on paradigm and particularity, seems to offer the most useful and illuminating general methodology for the discipline.

Keywords: constitutional law, comparative constitutional law, constitutionalism, common law constitutionalism, legal constitutionalism, comparative law

Suggested Citation

Gardbaum, Stephen, The Place of Constitutional Law in the Legal System (March 15, 2012). OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW, Michel Rosenfeld and András Sajó, eds., Oxford University Press, 2012 ; UCLA School of Law Research Paper No. 12-07. Available at SSRN: https://ssrn.com/abstract=2024607

Stephen Gardbaum (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310 206-5206 (Phone)

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