Introduction

One of the most common assumptions in the field of comparative law is that modes of reasoning are so intrinsically intertwined with particular legal traditions, be it the common law or the civil law, that they simply cannot migrate from one tradition to another. Because they are entangled with basic jural conceptions with which they form the thickest layer of each tradition, ‘reasoning templates’, as I will call them, are presumed to be sedentary. The legitimate caution with which legal transplants involving either substantive or procedural norms are approached tends to reinforce that attitude. As a result, little attention is paid to what goes on in the ‘other’ tradition. For example, the growing common law literature on the judicial use of underlying constitutional principles generally ignores the civilian experience with the use of such principles. Its study would notably show that, in the civil law tradition, principles may sometimes allow for the sterilization of explicit legal prescriptions, which could shatter the common law myth of the passive civilian judge.

I mention this particular example because underlying constitutional principles provide an interesting starting point for studying the various ways in which constitutional ideas migrate. Due to their open-textured nature, which, by definition, requires their contextual individuation, principles may indeed serve as guises through which substantive or procedural ideas migrate. However, my goal in this chapter is not to examine potential situations where a given principle migrates from one jurisdiction to another.

Introduction

The second half of the twentieth century saw a proliferation of transitions from authoritarianism and colonial rule to constitutional democracy in virtually every corner of the world. This phenomenon started shortly before mid-century with Germany, Japan, India, Pakistan, and Israel, and continued several decades later with Greece, Portugal, and Spain. In the late 1980s and early 1990s, it spread through Central and Eastern Europe, followed by the repudiation of dictatorship in several Latin American countries. These various transitions were inspired by, and drew upon, various constitutional traditions, such as the US, British, French, and later, the German. Throughout this process, constitutional norms were ‘exported’ by established constitutional democracies and ‘imported’ into new democracies. Some norms were undoubtedly liberal, while others were not.

In this chapter, we assess the contribution of the transplantation of liberal constitutional norms to the spread and consolidation of liberal constitutionalism. Is the mere importation of such norms sufficient to pave the way for liberal constitutionalism? Or must certain preconditions prevail, or develop subsequently, for transplantation to succeed? Can importation of liberal constitutional norms have a significant impact notwithstanding the concurrent importation of non-liberal constitutional norms, such as those based on communitarian values, social-welfare objectives, or ethnocentric conceptions of citizenship?

A full assessment of the exportability of liberal constitutionalism is fraught with difficulties. A principal difficulty is that there is no agreement on the meaning of liberalism, much less on what rights or values are liberal or on what counts as a liberal interpretation or application of fundamental constitutional rights.

At its inception in 1987, Ronald Reagan heralded the Canada-US Free Trade Agreement (CANUFTA) as a ‘new constitution’ for North America. This was not merely an agreement about managing trade interdependence. Rather, President Reagan signalled this was a project with grander political and cultural objectives. It was no great leap, then, to envisage CANUFTA's successor, the North American Free Trade Agreement (NAFTA), as being even more constitution-like, expanding and deepening continent-wide constitutional commitments. The intuition carried greater force in light of NAFTA's new investor-state dispute mechanism, granting foreign investors the ability to sue state parties directly in order to enforce NAFTA's investment chapter (Chapter Eleven). For scholars writing in the Canadian tradition of political economy, it was easy to connect the dots, just as President Reagan had suggested. A steady stream of scholarly production (to which I have modestly contributed) has examined linkages between these new sorts of transnational constraints and domestic constitutional ones. Upon examination, it becomes apparent that a number of NAFTA's investment disciplines even mirror rights available within national constitutional regimes, more particularly, an expansive US version. So this is a politico-cultural project with a particular genealogy. Writers have hypothesized about the implications of this ‘new constitutionalism’ for North America, and the potential enfeebling of Canadian legislative authority that would unfold over time. The emphasis in this work, which I will label ‘constitutionalist’, has been on preserving the particular, the local, or the national in the face of pressures for further continental integration.

Introduction

There is a tension inherent to the idea of constitutional self-government, as it is understood by many constitutional lawyers, and the claims to authority made by international law. That tension has long been covered up by the fact that international law covered merely a relatively narrowly circumscribed domain of foreign affairs, was solidly grounded in state consent, and generally left questions of interpretation and enforcement to states. Much of contemporary international law no longer fits that description. International law has expanded its scope, loosened its link to state consent, and strengthened compulsory adjudication and enforcement mechanisms. Not surprisingly, one of the most pressing questions of contemporary constitutional law is how to think about the relationship between the national constitution and international law.

In the first decades of the twentieth century, jurisprudential debates among international lawyers thinking about the relationship between national and international law focused on whether the legal world exhibits a monist or a dualist structure. Under a monist conception of the legal world, international and national law constitute one vertically integrated legal order in which international law is supreme. Dualists insist on the conceptual possibility, historical reality, and normative desirability of a non-monist conception of the legal world. Under a dualist (or pluralist) conception of the legal world, different legal systems on the national and international levels interact with one another on the basis of standards internal to each legal system.

In this book, we collectively retire the idea of ‘constitutional borrowing’ and put in its place the idea of ‘constitutional migration’. Metaphors matter in shaping thought, and so it is crucial to get the metaphors right for highlighting key features of the matter under discussion. And ‘migration’ gives us tools to think with that ‘borrowing’ cannot. After all, constitutional ideas migrate back and forth across international boundaries, like other transnational flows. Borrowing implies something far more rigidly organized.

Nonetheless, the metaphor of borrowing is still the most commonly used image in the field of comparative constitutional law. The prevalence of the idea of ‘borrowing’ has brought with it a sense that there are national stocks of constitutional knowledge that are lent out in a neighbourly way like cups of sugar from house to house. But the borrowing metaphor seems patently misleading as a description of the way that constitutional ideas actually move in transnational legal space. First, ideas are not ‘borrowed’ with the implicit promise that they will be returned. Then, constitutional constructions are not owned in the way that ‘borrowing’ implies, with use of the object temporarily given to a non-owner while the real owner retains certain superior rights. Finally, the idea of ‘borrowing’ always signals that something positive is being transferred without alteration, which takes attention away from the cases in which one country draws negative implications from another country's experience or from the cases in which ideas are irredeemably altered as they move.

Introduction

It is widely accepted that the migration of constitutional ideas through judicial borrowings has facilitated the emergence, in a variety of jurisdictions, of a common liberal democratic model of constitutionalism. In her contribution to this volume, for example, Lorraine Weinrib describes a postwar constitutional paradigm or model that is produced by the cross-fertilisation of ideas from many jurisdictions. In her account, this new paradigm is characterised mainly by the method that judges use to determine the validity of laws alleged to infringe constitutionally guaranteed rights. Starting from the premise that these rights are never absolute, this method involves determining whether a law does infringe a right, and, if so, whether it is consistent with the rule of law, and justified by its pursuit of a sufficiently important objective in a rational and proportional fashion, consistently with deeper principles of equality and dignity.

I believe that the phenomenon of judicial borrowing, in the service of an emerging cosmopolitan model of constitutionalism, goes much further than this. Weinrib is concerned with constitutions that explicitly protect rights but permit them to be restricted in some cases. Within that framework, some method is needed to determine the scope of the rights and the validity of restrictions imposed on them, and judicial borrowings have helped courts develop a sensible method. For reasons I will mention later, none of this strikes me as very controversial. I will discuss, instead, judicial borrowings that go far beyond the methodology used to interpret and apply existing rights.

The politics of comparative constitutional law

Usually judges ask the questions, but on this night the roles were reversed. The occasion was a public conversation between United States Supreme Court Justices Breyer and Scalia, answering questions posed by constitutional scholar Norman Dorsen. The topic was the ‘Constitutional Relevance of Foreign Court Decisions’ to the Court's constitutional case law. For a court routinely called upon to address the most divisive issues in US public life, judicial citation practices hardly seem worthy of a rare evening with two of its most distinguished members. Yet the auditorium was packed, with hundreds more watching over a live video feed.

Court observers knew that the event merited close attention. The backdrop was the Court's increasing use of comparative and international law – both described as ‘foreign’ to the US constitutional order – in its constitutional decisions over the previous decade. This practice – which I term the migration of constitutional ideas – has deeply divided an already divided Court, along the same ideological lines which have polarized its jurisprudence. Breyer and Scalia are the leading figures in this ongoing jurisprudential drama, although other Justices have joined the debate. Their initial skirmish, in Printz, arose in a challenge to federal attempts to ‘commandeer’ state officials to deliver federal programmes. Breyer suggested that the constitutionality of this practice in European federations was relevant to the Court's analysis, while Scalia, delivering the opinion of the Court, declared ‘comparative analysis inappropriate to the task of interpreting a constitution’.

Introduction

The Constitution of the United States provided the inspiration for the rights-protecting constitutions of liberal democracies throughout the world. Yet the constitutional systems developed or newly established since the Second World War now differ from their US precursor. These systems have come to share a sophisticated legal paradigm that facilitates – indeed, perhaps necessitates – comparative engagement. The constitutional jurisprudence of the United States stands apart from this shared legal paradigm. Recently, prominent US judges and politicians have crossed swords on the issue of comparative reflection. This debate raises an important question: how should US scholars and judges define the relationship of their Constitution to the constitutional systems of liberal democracies that operate within the postwar constitutional paradigm?

To broach this subject one must consider the rancorous history of US constitutionalism over the last half century and beyond. Two competing constitutional conceptions vie for supremacy, each with its own view of fundamental principles, institutional role, and comparative engagement. A rights-based conception favours comparative engagement, regarding other constitutional systems as repositories of methodological direction, illuminating example, and theoretical reflection. The other, an indigenous, historically fixed conception, regards such engagement as unnecessary and perhaps even subversive.

The rights-based conception was dominant during the era of the Warren Court.

Introduction

The focus of this volume is the migration of constitutional ideas across international borders and national jurisdictions. Many of the chapters presented here also focus on the positive influences of such migration, be it through charting the course for aspirational constitutionalism or supplying negative benchmarks for aversive cross-constitutional influence. This chapter looks instead to influences that, while taking place across borders, occur within a single ‘control system’ such as Great Britain and Northern Ireland or France and Algeria. The chapter uses the context of emergency regimes to sound a word of caution about certain aspects of legal or constitutional copying. Specifically, the chapter looks at concrete examples of the collapse of mechanisms that were designed to maintain different yet connected marketplaces of constitutional ideas segmented from each other.

In theory, one part of a control system – the controlling territory – applies an emergency regime to the dependent territory. At the same time, a putative normal legal regime is maintained in the controlling territory itself. The two legal regimes apply contemporaneously. The dependent territory becomes an anomalous zone in which certain legal rules, otherwise regarded as embodying fundamental policies and values of the larger legal system, are locally suspended. However, the claim is that the two realities and the two concomitant legal regimes – that of emergency applicable to the dependent territory and that of normalcy applicable to the controlling territory – are maintained separately and do not affect each other.

The terrorist attacks of 11 September 2001 have resulted in the expansion of anti-terrorism laws throughout the globe. The international and domestic reaction to these attacks constitute a type of horrible natural experiment in the migration of constitutional and anti-constitutional ideas. In this chapter, I will attempt to provide insight into the complexity of the migration of constitutional ideas with respect to anti-terrorism laws by examining the influence of the definition of terrorism in Britain's Terrorism Act 2000 on the post-9/11 development of anti-terrorism laws in Australia, Canada, Hong Kong, Indonesia, South Africa, and the United States, as well as the role that domestic law, politics, and history played in producing variations in the definition of terrorism in each country.

As Kim Lane Scheppele argues in her contribution to this collection, international law, and in particular the UN Security Council Resolution 1373, helped shape the worldwide expansion of anti-terrorism laws after the 9/11 terrorist attacks. At the same time, as Professor Scheppele notes, Security Resolution 1373 made no attempt to define terrorism and a universal definition of terrorism has so far eluded the international community. A failure to define terrorism in international law allowed various local agendas to enter into the definition of terrorism. Although, as Professor Scheppele suggests, the local agenda sometimes helped produce more repressive laws, at other times, it restrained the new international mandate to combat terrorism.

These are relative heydays for comparative constitutional law scholarship. After a near century of embedded parochialism and intellectual stalemate, the field has recently seen a certain renaissance. From comparative inquiries of constitutional transformation to sophisticated analyses of comparative constitutional jurisprudence, the field has made a tremendous leap forward over the last few years. Even the US Supreme Court – perhaps the last bastion of parochialism among the world's leading constitutional courts – has recently joined the comparative-reference trend. But in spite of the growing interest in comparative constitutional systems, too little has changed in the epistemology and methodology of comparative constitutional law. Fundamental questions concerning the very purpose and rationale of comparative inquiry (and how that enterprise is to be undertaken) remain largely outside the purview of mainstream constitutional law scholarship. Genuinely comparative, problem-driven, and inference-oriented scholarship is still difficult to come by. More specifically, comparative constitutional law scholarship produced by legal academics often overlooks (or is unaware of) basic methodological principles of controlled comparison, research design, and case selection. The chapter addresses this lacuna by contrasting the approaches of legal academics and political scientists to the same sets of comparative constitutional phenomena. It suggests that while the study of comparative constitutional law by legal academics has contributed significantly to the accumulation of knowledge through the development of novel concepts and thinking, it has, for the most part, fallen short of advancing knowledge through tracing causal links among pertinent variables, let alone contributing to theory building through substantiation or refutation of testable hypotheses.