'Remembrance of Things Past': Early Encounters with the Constitutive Laws of Others
International Journal of Constitutional Law 13 (2015): 1-8
8 Pages Posted: 12 Jun 2015
Date Written: May 1, 2015
In this Editorial, I address a curious feature of the contemporary renaissance of comparative constitutional inquiries: its exclusive focus on the “current” and the “new” with little or no attention to the field’s rich and captivating intellectual history. Contemporary discussions in comparative constitutional law and comparative public law more generally, often proceed as if there is no past, only present and future. Many of the debates that take place within the field are presented as grounded in ideas or situations that are novel and hitherto unknown to mankind. The reality, however, is that critical encounters with the constitutive laws of others have been taking place since well before the late 18th century. Many of the contemporary debates in comparative constitutional law have early equivalents, some of which date back over two millennia. Granted, many of the specifics at play are indeed new. The migration of constitutional ideas, the ascendance of constitutional guarantees of rights and entitlements, the rise of a new transnational legal order and judicial class, and the corresponding decrease in the autonomy of “Westphalian” constitutionalism are among the developments that have inspired debates in the last few decades. And it is also true that the rapid development of information technology and the tremendous improvement in the quality and accessibility of data sources on constitutional systems and jurisprudence worldwide — have already had an effect on the way comparative constitutional inquiries are pursued. Taken as a whole, however, the history of engagement with the constitutive laws of others is much longer and richer than is reflected in the field’s current renaissance.
The near-exclusive emphasis on contemporary “headline” matters is understandable yet misguided. First, a field with no past lacks a solid intellectual identity and analytical mainstay. Second, the field’s presumption of all-out novelty, of an entire comparative enterprise de-novo is in some respects fictional. Purportedly new challenges such as the fundamental tension between forces of legal convergence and enduring patterns of divergence have numerous early equivalents that occupied thinkers, jurists, and rulers for centuries. Third, and most importantly, conceptual history is potentially a powerful analytical and methodological tool for understanding the origins of comparative public law as we know it, for explaining the field’s current renaissance, as well as for tracing how and why the constitutive laws of others have been selectively engaged, endorsed or rejected by communities, polities and empires through the ages. It may help drive home the message that comparative constitutionalism is more than an emerging field of legal inquiry. It is a tool for understanding of the political and the social condition itself.
Keywords: Comparative constitutional law, comparative law, history, Montesquieu, Bolivar, Bodin, Leibniz, Selden, Bacon, Jewish law, Jellinek, Bryce
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