Constitutional Theory in a Comparative Context

Abstract

Comparative constitutional law presents both opportunities and challenges for doing constitutional theory. In this chapter, written for the second edition of Jacobsohn and Schor Comparative Constitutional Theory, we begin with a prior foundational question: ‘what is constitutional theory?’ In the first part of the chapter, we put forward an account of constitutional theory that situates it among other ways of studying and understanding constitutions. We also advance a set of criteria for evaluating the adequacy of a constitutional theory namely that a good constitutional theory will be well-structured internally; will have normative appeal and will be ‘empirically adequate’. The third of these criteria means that a constitutional theory must be able to accommodate a reasonable range of constitutions as they exist in the world. In the second part of the chapter, we explore the challenges of doing constitutional theory in a comparative context for the abstraction or idealisation necessary for theory-formation. When a constitutional theory purports to have application beyond a single case — to a group of constitutions or, most ambitiously, to any constitution — there is a risk that the theory cannot account for the variety of constitutions and diversity in constitutional practice. Purportedly general propositions may turn out to embed assumptions that are particular to one (or a set of) jurisdictions. In short, doing constitutional theory in a comparative context places pressure on empirical adequacy. We explore these challenges through a number of case studies, drawing on the work of Aileen Kavanagh, Yaniv Roznai and NW Barber. These studies expose a tension between two possible ambitions of theorisation: the desire for universal application and the desire for contextual richness. In conclusion, we suggest that constitutional theory formation in a comparative context may be better served not by resisting general claims but rather by refining general claims in light of the particular.

Keywords: Constitutional theory, constitutional law, comparative constitutional law, comparative constitutional theory