Comparative Constitutional Law: An Overview
The article "Comparative Constitutional Law: An Overview" highlights how comparative analysis allows for a deeper understanding of constitutional design choices, providing insights into the strengths and weaknesses of different constitutional models.
The article "Comparative Constitutional Law: An Overview" highlights how comparative analysis allows for a deeper understanding of constitutional design choices, providing insights into the strengths and weaknesses of different constitutional models. Comparative Constitutional Law helps identify trends and patterns in constitutional development, enabling scholars, policymakers, and jurists to learn from the experiences of other jurisdictions and promote constitutional reforms.
The fact that our nation's Constitution is a compilation of the various phases of Indian politics is well established. In our view, the Constitution isn't an ordinary document written out of stone. It's a creature of constant change, triggered by the emergence of new social needs and new policy wills that are commonly implemented via official Changes but also more frequently through informal ones. Therefore, learning about fundamental principles contributing to the relationship between Government and Citizens' Freedom can be considered as an essential goal of a system of Comparative Constitutional Law.
In addition, the scope of comparative constitutional law extends to understanding and coming up with models or ideals which can explain in greater detail the final values that underpin Constitutional Agreements hence, it will be necessary to tackle a variety of Constitution rules and to distinguish between similarities and differences. This paper mainly aims to analyze the underlying benefits behind the principle of comparative constitutional law along with necessary instances and case laws where this had been applied.
Meaning and Definition of Comparative Constitutional Law
Comparative constitutional law involves analyzing constitutional provisions, court decisions, and legal doctrines across different jurisdictions to identify commonalities, conflicts, and innovations. It explores how different countries address fundamental issues such as the separation of powers, the protection of individual rights and liberties, the relationship between the government and the people, and the mechanisms for constitutional interpretation and amendment.
In the current era of internationalism, democratization and globalization the need for comparative law has increased drastically. Nevertheless, this principle has played a vital role in the drafting of several constitutions across various countries. During the drafting of the Indian Constitution, the discussion on the fundamental rights, directive principles of state policy, parliamentary form of government, federalism, judicial review, amendments, equality before the law, equal protection of the law etc. were primarily adopted after a comparative analysis of the constitutional laws of the United States of America, United Kingdom, Canada, Ireland, Australia and others.
Montesquieu considered the pioneer of Comparative Constitutional Law, emphasized that all political and civil laws should be designed to benefit the people they are meant for and should align with the principles of the governing institutions. Moreover, these laws should ensure fundamental liberties for all citizens. When scholars engage in comparative analysis of legal systems from various countries to address specific issues, they should examine them comprehensively and in their entirety.
What distinguishes a Constitution from Other Laws
The Constitution of a state differs from other laws in numerous ways regarding its scope, and application etc., The Constitution is the law of a country that governs itself and covers all rules and regulations while the law refers to one measure or regulation which has been adopted by governments for the benefit of its citizens. If there is a conflict between ordinary law and a provision in the constitution, the constitutional provision prevails, and the ordinary law is void.
The Constitution is the law of the land because it comprises all the fundamental principles and laws that state how a country should be governed. This includes inter alia, the basic Political Code, Framework, Mechanisms, Powers and responsibilities of Public Authorities, Fundamental Rights, directives and duties to be fulfilled by persons, etc. Unlike other laws, the scope of the Constitution is not restricted to a certain extent, as it contains provisions about various aspects. Whenever a discrepancy arises between Constitution and any other law enacted by the state, the Constitution supersedes the other through its extensive applicability.
Rise of Comparative Constitutional Law
The Rise of comparative Constitutional law can be traced back through 3 phases namely:
- The Legal Profession and the Rise Era
- Structure of Scholarship during the Rise Era
- Larger Political Environment
In the first phase, the years after World War II were the most relevant in terms of comparative Constitutional Law, especially for their impact on this issue. When it came to events related to Constitutional law that spread around the world, of course, there was plenty of grist in the academic world. Within a few years, the three theretofore most proudly anti-constitutionalist countries in the world—Japan, Germany, and Italy—all adopted constitutions, and each adoption has generated a great deal of scholarly discussion.
In the second stage, US constitutional law has also been examined in comparative Constitutional Law Studies and articles have been written by prominent scholars from various areas during this time of growth. During the Fall era over the years, comparative constitutional law has explored a broader range of topics and articles have been presented by an increasingly specialist group of scholars.
During the rise period, comparative constitutional law scholarship focused on a broad range of issues, resulting in an interest in comparative constitutional law in a wide range of areas, from law schools to the profession of law. This comparative scholarship of the Constitution with other legal scholars and professionals grew out of an alliance among important academic groups.
The interests of the country were more generally focused on the rest of the world during the rising era, even beyond the interest of the profession. The evolution of constitutional law in other parts of the world has become an increasingly important concern for legal schools.
Benefits of Comparative Constitutional Law
There are many underlying benefits concerning comparative constitutional law which are mentioned below:
- Comparative Constitutional Law promotes democratic principles and the rule of law.
- Comparative Constitutional Law helps scholars, jurists, and policymakers to obtain a broader understanding of constitutional principles.
- Comparative Constitutional Law plays a significant role in protecting rights and liberties.
- Comparisons are an opportunity for students to interact with several models which have illuminated the meaning and foundation of constitutional law in our time.
- By encouraging students to distinguish among themselves concerning accidental, particularistic, or autobiographical elements of constitutions from their more General, inclusive and universalistic components this comparison ultimately enhances the power of judgement.
- This comparison shows that no one has a special status in terms of rights granted to them, and all democratic administrations are closely linked to other constitutional democracies.
Important Case Laws
There are several instances where the concept of comparative constitutional law has played a pivotal role by serving as the foundation for the judiciary system in concluding numerous cases. A few prominent instances are mentioned below:
In the case of Naz Foundation v. Govt of NCT of Delhi, 160 Delhi Law Times 277, the decision has been taken by the comparative approach. In this judgment, the court was confronted with the question of the constitutionality of section 377 of the Indian Penal Code, which prohibited unnatural sex. In Puttaswamy, the case was also cited, although Naza's decision was subsequently overturned by the Supreme Court, and comparative analysis is often praised by scholars of comparative constitutional law. It appears that the decision was not subject to cherry-picking because it has been based on a large number of countries such as the US, United Kingdom, Canada and South Africa.
In the judgement of K.S Puttuswamy v. Union of India, AIR 2017 SC 4161 according to J. Chandrachud, the right to privacy is becoming an essential right in countries such as the USA, United Kingdom, Canada and South Africa. In Boyd v. United States, 116 U.S. 616 (1886) an original case that has brought these issues to light, Puttaswamy analyses the evolution of privacy rights.
In a nutshell, it can be said that the concept of the right to privacy was intrinsic to the constitutional enactments within the amendments and the judiciary through these enactments the meaning of the right to privacy was derived. Puttaswamy had demonstrated, too, that the right to private life was enshrined in Article 21 of India's Constitution.
Comparison of the Constitutions of Various Countries
- India's constitution is the longest-written constitution in the world.
- A Quasi-federal system is followed in India.
- According to the Indian Constitution, a parliamentary government is provided for both at the centre as well as in the state.
- According to the Indian Constitution, single citizenship is guaranteed.
- The British Constitution is written in the framework of general law, charter, conventions and policy traditions as an unwritten document.
- The British Government supports a unitary system.
- The British Constitution provides for flexibility and does not require that a person lose his or her original citizenship.
- A unitary form of government is set out in the French Constitution.
- France allows dual citizenship.
- There are features of both presidential and parliamentary forms of government in the French Constitution.
- The Constitution of France is very rigid in nature.
- The German Constitution is very rigid in nature.
- The President is the constitutional head of government in Germany.
- The Constitution of Germany permits dual citizenship.
As a result, judges across the world are using constitutional law practice in various countries as an essential source of interpretation. Analyzing, applying and interpreting the laws laid down in a nation's constitution is guided by comparative constitutional law. In cases where it appears that an illegal act has been committed, experts on Constitutional Law may participate. Furthermore, constitutional law experts may be involved in amending or changing existing legislation where it appears that they are at odds with the views of a nation.
 Comparative Constitutional Law and its Applicability in International Law, Available Here
 Importance of Comparative Legal Studies, Available Here