Comparative Constitutional Studies 2.0 – Lost in translations revisited

Abstract

This article aims to cast theoretical light on main methodological and epistemological challenges of constitutional comparison by situating the debate at the crossroads of law and social sciences. With a forward-looking perspective in mind, I argue that constitutional interpretation and comparison cannot put a blind eye on the fluidity and contingency of the living constitution. Therefore, it is of paramount importance to progress from a strict comparative constitutional law approach to conjoint comparative constitutional studies. Such interdisciplinary endeavour seeks to bridge doctrinal and empirical methodologies. I will then address the politically incorrect issue of asymmetrical judicial dialogue. Although some scholars bristle at the idea of embracing mutual cross-citations, the migration of constitutional ideas will never succeed as a one-way process. In so arguing, this article seeks to to understand the reasons underlying parochial perspectives of constitutional interpretation and why, oftentimes, constitutional comparison remains concealed. At the same time, I will analyse the heated debate of Justices Scalia and Breyer, which triggered extreme and radicalized reflections worldwide. The polarization of the debate metamorphosed what was supposed to be an enlightened discussion on constitutional comparison theory and methodology to a melodramatic and radical exchange of accusations on both sides. This article challenges established assumptions, concluding that the well-known labels of ‘comparativist’ and ‘anti-comparativist’ have been highly exaggerated. In between there is room for constitutional cosmopolitanism without forsaking constitutional patriotism.

CONTENTS: I Foreword; II – Is “lost in translation” still a motto? 1. Historical evolution; 2. On the advantages and disadvantages of constitutional comparison; (a) Cost-benefit analysis; (b) Judicial unaccountability; (c) Lack of a unitary methodology of constitutional comparison; (d) “Friend in the crowd”? The “cherry-picking” argument; (e) Comparison as a vain exercise of dilettantism and superficiality; (f) Risk of mistranslation or rejection; (g) On why the advantages outweigh the risks; III – Transitioning from comparative constitutional law to comparative constitutional studies; 1. What is so special about constitutional interpretation?; 2. On the benefits of an interdisciplinary approach to constitutional comparison; IV –Asymmetrical judicial dialogue; V – Concealed comparativism or the remaining of unbend parochialism; 1. What is your state’s commitment level? Bringing shame to the game; 2. United States of America’s exceptionalism: an unfair critique? VI – Concluding remarks.

Keywords: comparative constitutional law; comparative constitutional studies; explicit constitutional comparison; implicit constitutional comparison; asymmetrical judicial dialogue; foreign and international law; globalization; comparativist versus anti-comparativist; national identity; American insularity