Why Law was Late to Comparative Constitutional Amendment

22 Pages Posted: 29 Nov 2023 Last revised: 14 Dec 2023

See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; University of Texas at Austin - Department of Government; Université Paris II - Panthéon-Assas; Universidad de Especialidades Espíritu Santo; Universidad Externado de Colombia - Facultad de Derecho; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Toronto - Faculty of Law; University of Ottawa - Faculty of Law; Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law; Airlangga University; Yale University; Maharashtra National Law University Mumbai

Date Written: October 29, 2023

Abstract

Today law leads all disciplines in the study of comparative constitutional amendment. In its early stages, however, comparative constitutional amendment was almost exclusively the domain of political science. Why was law late to the field, and what explains its primacy in the present day? In this chapter prepared for a volume on “Disciplinary Divides in Public Law,” I sketch a brief intellectual history of the field of comparative constitutional amendment with an overview of the three waves of scholarly inquiry—descriptive, empirical, and purposive—that have defined the field since its beginnings. I show that political scientists created the field with their rich descriptive analyses of amendment rules in the constitutions of the world. Lawyers had little interest in this line of inquiry. Political scientists moreover initiated the second wave in the field with novel empirical studies of the flexibility and rigidity of constitutional amendment rules. As in the first wave, lawyers showed little interest in this second wave. I moreover show that law was eventually drawn to the field only when courts became significant actors in the making and amending of constitutions—a seismic development in constitutional practice that occurred during what became the third wave in the study of comparative constitutional amendment. Law has since driven scholarly inquiry in the field. But as the field now enters an emergent fourth wave of scholarly inquiry, law and political science will have to blend their complementary disciplinary advantages if ever we hope to make progress in defending democracy from attacks from within.

Keywords: Constitutional Amendment, Constitutional Change, Comparative Law, Comparative Constitutional Amendment, Comparative Constitutional Change, Constitutionalism, Democracy, Empirical Constitutional Studies

Suggested Citation

Albert, Richard, Why Law was Late to Comparative Constitutional Amendment (October 29, 2023). Available at SSRN: https://ssrn.com/abstract=4616700 or http://dx.doi.org/10.2139/ssrn.4616700

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
617-756-2622 (Phone)

HOME PAGE: http://law.utexas.edu/faculty/richard-albert

University of Texas at Austin - Department of Government ( email )

College of Liberal Arts
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Austin, TX 78712
United States

Université Paris II - Panthéon-Assas ( email )

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Paris cedex 06, 75231
France

Universidad de Especialidades Espíritu Santo ( email )

Facultad de Derecho
Av. Samborondón 5
Samborondón, 092301
Ecuador

HOME PAGE: http://uees.edu.ec/postgrado/postgrado-derecho

Universidad Externado de Colombia - Facultad de Derecho

Calle 12 # 1-17 este
Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

HOME PAGE: http://www.uexternado.edu.co/derecho

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

HOME PAGE: http://direitosp.fgv.br

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

HOME PAGE: http://commonlaw.uottawa.ca

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://www.idc.ac.il/en/schools/law/pages/home.aspx

Airlangga University

Dharmawangsa Dalam Selatan
Surabaya, East Java 60286
Indonesia

HOME PAGE: http://www.unair.ac.id

Yale University

493 College St
New Haven, CT CT 06520
United States

Maharashtra National Law University Mumbai ( email )

2nd Floor, CETTM MTNL Building, Technology Street
Hiranandani Gardens, Powai, Mumbai 400076
Maharashtra
India

HOME PAGE: http://mnlumumbai.edu.in/vaf.php

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