Chicago Journal of International Law

Volume 3 Number 2 Article 12

9-1-2002

Introduction to Comparative Constitutionalism

Martha C. Nussbaum

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Nussbaum, Martha C. (2002) "Introduction to Comparative Constitutionalism," Chicago Journal of
International Law: Vol. 3: No. 2, Article 12.
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 Introduction to Comparative Constitutionalism
Martha C. Nussbaum"

Comparative constitutionalism is an area of legal scholarship with a long history,

and it has long been an area in which legal scholars collaborate with scholars in other
disciplines, such as political science, philosophy, and sociology. Recently, as
globalization has fostered closer relations among nations and as international treaties
and agreements have played an increasing role in many nations' understanding of their
domestic legal traditions, the need to study constitutional issues comparatively has
come to seem even more urgent and the interdisciplinary collaboration involved even
more fruitful and exciting.
The symposium on Comparative Constitutionalism centers on Mark Tushnet's
article, State Action, Social Welfare Rights, and the Judicial Role: Some Comparative
Observations Tushnees article displays not only a mastery of traditional techniques of
comparative analysis of text and interpretation, but also a sensitivity to the larger
social and political forces in societies that affect the understanding of constitutional
guarantees. The field of comparative constitutionalism is intrinsically cooperative and
interdisciplinary, since it requires a depth of knowledge about comparative political
structures that lawyers as such do not typically acquire from their legal education. It is
therefore appropriate that Tushnet's commentators include a law professor with
philosophical inclinations (Epstein), a law professor who is also a political scientist
(Sunstein), and a political science professor who is also a philosopher (Young). Such a
cooperative group is needed to shed light on the tangled relations between legislatures
and courts, and between both of these and larger social values.

Ernst Freund Distinguished Service Professor of Law and Ethics, The University of Chicago: Law
School, Philosophy Department, and Divinity School; Board, Human Rights Program;
Coordinator, Center for Comparative Constitutionalism. The Symposium was the inaugural event
for the new Center for Comparative Constiturionalism at the University of Chicago. This
interdisciplinary Center (which includes faculty from Law, Political Science, Philosophy, Sociology,
and other disciplines) will study the implementation of constitutional entitlements, particularly for
disadvantaged groups, and the social forces (such as education and religion) that affect this
implementation.
1. Mark Tushner, State Action, Social Welfare Rights, and the JudicialRole: Some ComparativeObservations, 3
ChiJ Intl L 435 (2002).
 CbicagoJournal'ofInternationa(Law

Why should we look at constitutional provisions comparatively? Traditional

courses in constitutional law are not comparative. Comparative courses are becoming
more common, but they are not part of the core of required law courses; often, in fact,
they are offered by the department of political science, rather than the law school.
And yet I would argue that the comparative study of constitutions is an essential part
of learning constitutional law, important in all societies, but especially urgent in the
United States, whose general culture tends to be unusually inattentive to other
nations and their ways of doing things. There are three powerful reasons for making
comparative2 constitutional law far more central in the law school curriculum than it
currently is.
First, we do not fully understand our own Constitution and its guarantees until
we have thought about other ways of organizing similar material. This is a general
point about human understanding: all too often we treat what is familiar as totally
unremarkable and "natural," thinking that our way is the way things must be. It is only
when we see another perfectly reasonable but very different way of doing things that
we begin to recognize that our way is actually one option among many, the result of
history and choice rather than necessity. And it is only after we have achieved that
recognition that we begin to be able to ask ourselves why our system is the way it is,
whether it really has to be that way, and what system, if any, might be better.
The essential importance of comparison for understanding and evaluation is a
theme that has deep roots in Western traditions of inquiry. The ancient Greek
historian Herodotus, in order to study and ultimately evaluate the ethical and political
values of his homeland, traveled around the entire known world, recording the
customs and values of Persians, Egyptians, Scythians, and many other peoples. It was
only after an extremely lengthy comparative account of many different areas of value
and culture that he judged himself to be in a position to evaluate his homeland. In
some areas, the result of the comparative inquiry is deflationary: what feels to Greeks
like a deeply held ethical conviction is revealed to be a mere habit, with no compelling
reasons in its favor. Greeks think that the corpse must be buried, and that it is the
most shameful thing of all to allow a corpse to be exposed. But the Persians, by
contrast, deliberately expose the corpses of their dead, believing that the birds of prey
should do their work, and that such a practice is respectful of the dead, rather than
heinous. Herodotus suggests that each is in the grip of a deeply held religious custom,
and that neither has good reason to be shocked (as each typically is) by the practices of
the other. The challenge of Herodotus' history is to find out whether everything is
like this, mere habit without true ethical value. (Herodotus' answer to this question is
clearly no. The central political values of the Athenian democracy turn out to be more
deeply rooted, with more to be said for them, than customs about burial.)

2. For my general reflections on the need for more international study in legal education, see Martha
Nussbaum, Cultivating Humanity in Legal Education, 69 U Chi L Rev (forthcoming 2002).

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Comparative constitutionalism continues Herodorus' inquiry. When we look at

different ways of organizing basic political principles, we are forced to notice that our
ways are not the only ones that reasonable people pursuing roughly similar goals
might choose, and we are led to ask what reasons we had and have for our own ways.
Tushnees paper prompts such reflection throughout. Looking at the different
structures ofjudical review recorded by Tushnet, and the many different ways courts
have of relating to legislatures, we are then required to see that our own style of
judicial review, which seems so natural that it looks like the only reasonable way to do
things, is not in fact the only reasonable way. We then are forced to ask which ways
are good, and, among the good, which are better. Tushnets paper focuses on the
descriptive task, but it ventures into the normative domain when it raises questions of
internal coherence and stability. Some systems contain internal tensions that render
them unstable; others do not. And some appear to fit well with the overall values of
the surrounding society, while others do not. Although Tushnet is not primarily
interested in defending social-democratic norms, it is evident that he has considerable
sympathy with them, and with the related project of securing to citizens a set of social
and economic rights. Thus the question whether a constitutional order that
guarantees such rights can evolve a stable and coherent set of legal institutions is itself
a question that has normative significance. Comparative study puts these questions on
the table, and illuminates them.
But the reasons for studying constitutional law comparatively are not only
reasons of self-interest. Comparative study does teach American lawyers a great deal
about America, its achievements and eccentricities, its commonalities and its
exceptionalism. It helps us ask what we should stick to, and what might possibly be
changed. But we should not concede that the only point of legal education, and legal
scholarship, in the United States, is to develop an understanding of US law. All
nations are increasingly dose to one another, through modern communications,
through the power of international institutions, agencies, and treaties, and through
the global economy, which constructs complex relations of interdependence linking
the United States with virtually every other nation. Law students may work for
multinational clients; law firms themselves are increasingly multinational. This means
that a knowledge of the legal and constitutional systems of other nations, intellectually
valuable in itself, is also an urgent necessity, if American lawyers are to deal
responsibly and sensibly with clients and associates at a distance. Comparative
constitutional law cannot teach the young lawyer all he or she will ultimately need to
know about the complex world in which law firms now do business; but it can impart
techniques of inquiry and reveal how much there is to learn.
There is another very urgent reason why we should know more about how
things are done elsewhere. Our actions affect lives at a distance. In this era of
globalization, the decisions made by a lawyer representing Pepsi-Cola, or Hyatt
Hotels, may affect the lives of workers in India and South Africa, China and
Bangladesh. This suggests that the young lawyer should know a lot more than most

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Americans currently do about the world outside America. Of course constitutional

law is not the only thing that such a lawyer ought to be learning. In order to represent
ethically a firm that has dealings with South Africa, the lawyer should know not only
about Grootboom3 but also about the depredations of AIDS. Nonetheless, through the
study of a case such as Grootboom he or she will in fact learn a lot about the problems
of South African society, problems that are not totally unrelated to the actions of
companies (for example, pharmaceutical companies) based in the United States.
These are some of the reasons for recommending the study of comparative
constitutionalism to law students and legal academics. Tushnet's paper admirably
demonstrates some of the benefits such a study can offer to someone convinced by
these arguments. But the paper, together with the commentaries, provide more than
an example of comparative constitutionalism. They provide, in fact, a menu of issues
that scholarship in this area must repeatedly confront and attempt to understand.
The Constitution and the Larger Social Fabric. How is the constitution of a nation
related to the more general social traditions of the nation, its values and aspirations, its
most pressing problems? Tushnet's paper suggests that this relationship is complex.
Social values provide not only the historical context out of which constitutions grow,
but also an ongoing fabric of traditions and values that can often be vital in
interpreting constitutional provisions. At the same time, there obviously can be
tensions between a constitution, as interpreted, and the values of society at a particular
time. Many conflicts between legislatures and courts have their origins in such
dissonance.
Constitutional Values and Background Ethical Norms. Are constitutional provisions
free-standing constructs, or are there background normative principles that good
constitution-making ought to respect? Epstein holds that natural rights, prominently
including property rights, preexist constitutional provisions and provide a normative
standard against which they ought to be assessed. Sunstein might be read as taking
the opposite stance, holding that all property rights are simply political constructs.'
But his position is actually complex, and not incompatible with Epstein's. Taking no
stand on the question of whether property rights have a natural prepolitical basis, he
argues that as we know them, as meaningful guarantees that actually protect citizens
in their holding, property rights require and rest on state action, and on the state's
ability to spend the money to support them.
Constitutional Norms and the Socio-Economic Sphere. It has been traditional in
Western political philosophy to divide political entitlements into two groups: the
political and civil rights, and whatever entitlements to material goods are recognized

3. Republic of South Africa v Grootboom, Case No CCT 11/00 (Con Ct S Africa, Oct 4, 2000), available
online at <http://www.concourt.gov.za/judgments/2000/grootbooml.pdf> (visited Sept 9, 2002).
4. Such is the position, for example, of Liam Murphy and Thomas Nagel, The Myth of Ownersbip 45
(Oxford 2002).

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Introduction to Comparative Constitutionafism N¢ussbaum

by a state. The term "first-generation rights" now designates the former, "second-
generation rights" the latter. But the papers make it very clear that the two categories
are not easily separated. Sunstein insists that the rights in the first group have a
material element. They do not come into being on their own, but require the state to
allocate money if they are to be effective and real in people's lives. Thus in an
important sense all rights are welfare rights. Epstein suggests, by contrast, that we can
still make a clear and coherent distinction between some traditional activities of the
state, protecting people against force and fraud, and the new activities discussed
sympathetically in Tushnet's paper. In his view, the state is ill-advised to venture into
the realm of welfare, although he would presumably not deny that the rights he favors
do have a monetary cost. Getting clear about these issues, conceptually and practically,
is a major future task of work in comparative constitutionalism.
Constitutions and Consequences. A pervasive concern of the papers is with outcomes.
Whether or not constitutional provisions and their interpretation have a prepolitical
moral basis, they have consequences. And the authors appear to agree that both texts
and interpretive traditions can reasonably be evaluated by looking at how they work.
Do they produce stability or instability? Do they deliver the welfare that they seek to
deliver? Tushnet and Young are sympathetic not only to the goals of social democracy,
but also to its choice of means, its use of the political and legal sphere to guarantee a
certain level of welfare to all. Epstein believes that government involvement typically
makes things worse, and that the best course for government, in South Africa and
elsewhere, is to hold back and let private forces solve the problems as best they can.
Implementation. The papers do not focus directly on the topic of implementing
rights, but it is a pervasive theme in all of them. One question we may reasonably ask
about any constitution, together with its traditions of interpretation, is whether its
implementation of rights is real or capable of being made real. Sunstein formerly held
(in the earlier paper cited by Tushnet) that social and economic rights were a mistake
because they could not be implemented effectively. He now no longer holds this, nor
does Tushnet-although Tushnet's paper shows how difficult it is for courts to lay
out a path to the implementation of the rights of which they speak. All the papers
recognize that both political and economic forces are of primary importance in
determining whether rights that exist on paper ever become real. In some nations
(though by no means all) courts may give instructions for legislation; but they cannot
exactly legislate; nor can they bring about the economic climate within which the
problems they are trying to solve will be solved. (Epstein argues, for example, that the
solution to the problem of homelessness in South Africa lies far more in the private
sphere than in the legal and political spheres.)
There are other social forces, not mentioned in the papers, that are extremely
important in determining whether rights become real. One of the most important is
education. A nation, half of whose people cannot read or write, is not likely to be a
nation of citizens who vigorously claim their rights. One can predict that in such a
nation rights will be more real for some people than for others. Even access to the legal

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system requires literacy, and meaningful participation in claiming rights requires more
than mere literacy.
Another very significant factor is public health. Many nations of Africa are
ravaged by HIV/AIDS to an extent that compromises the ability of these nations to
support a meaningful regime of rights. In South Africa approximately 25 percent of
adults, and in Botswana an astonishing 38 percent of adults, are living with HIV.
Such people-especially in the absence of good medical care-are not likely to be
effective as citizens in claiming rights; and their inability to work creates massive
problems for the delivery of all rights, including the right to housing articulated in the
landmark case Grootboom.
A third factor that needs sustained study is the interaction between religion and
the implementation of constitutional rights. Especially in areas where rights clash with
entrenched traditions, religious bodies and their leaders play a very important role in
either securing or impeding rights. At the same time, the way a constitution shapes
the role of religion has a major impact on the way religion will function either as a
deliverer or impeder of rights.
These are only some of the social factors not mentioned in the papers that
require study if we are ever to acquire an adequate understanding of comparative
constitutionalism. Other such topics are the nature of security, policing, and the
protection of bodily integrity; the nature of the family; and the nature of the legal
profession and legal education. All these issues are present, so to speak, in the margins
of these eloquent papers, suggesting a rich menu of topics for future study in this
young and exciting field.

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