Routledge Handbook of Comparative Constitutional Change

Xenophon Contiades, Alkmene Fotiadou, Xenophon Contiades, Alkmene Fotiadou

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781351020961
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Comparative constitutional change has recently emerged as a distinct field in the study of constitutional law. It is the study of the way constitutions change through formal and informal mechanisms, including amendment, replacement, total and partial revision, adaptation, interpretation, disuse and revolution. The shift of focus from constitution-making to constitutional change makes sense, since amendment power is the means used to refurbish constitutions in established democracies, enhance their adaptation capacity and boost their efficacy. Adversely, constitutional change is also the basic apparatus used to orchestrate constitutional backslide as the erosion of liberal democracies and democratic regression is increasingly affected through legal channels of constitutional change.

Routledge Handbook of Comparative Constitutional Change provides a comprehensive reference tool for all those working in the field and a thorough landscape of all theoretical and practical aspects of the topic. Coherence from this aspect does not suggest a common view, as the chapters address different topics, but reinforces the establishment of comparative constitutional change as a distinct field. The book brings together the most respected scholars working in the field, and presents a genuine contribution to comparative constitutional studies, comparative public law, political science and constitutional history.

1

Introduction

Comparative constitutional change: a new academic field

Xenophon Contiades and Alkmene Fotiadou

The study of comparative constitutional change

A novel field of study

Constitutions change. Once enacted, constitutions function in an ever-changing environment and are themselves, as a rule, subject to formal and informal change. Comparative constitutional change (CCC) is the study of how, when, why and by whom constitutions change formally or informally.¹ Constitutional change includes alteration, revision, evolution, interpretation, replacement and revolution through formal and informal channels.² CCC uses comparative methodology to examine how constituted amending power is organized and exercised, as well as how it is complemented or substituted by other constitutional change mechanisms.

Comparison in the field of constitutional change is simultaneously vertical and horizontal, combining cross-time and cross-country analysis. Time is important: time with regard to constitutional change progresses at different speeds. Time moves fast with regard to events, slows down in constitutional episodes and is slow in the realm of constitutional culture. Changing time density explains the difference between incremental updates and episodic shifts in constitutional continuance which, when intermingled, produce constitutional change. Formal and informal amendment move at different speeds, and through their interrelation constitutions evolve.

Constitutional change and stability are not mutually preclusive: constitutions and societies alike have some stable fundamental features, which not only are crucial for understanding change but are potentially interdependent with change. For change to happen some stable points of reference are necessary and for constitutional stability to be achieved evolution is also necessary. Absence of change is also important: the question whether a constitution can or should be change-proof is a question about the nature of constitutions.

The field of CCC approaches constitutions through the way they change with the use of various methodological tools, encompassing and revealing different perceptions of the constitution. The components of CCC are in themselves subject to multiple approaches. Comparison, constitutions and change are multi-dimensional concepts that can be approached through a variety of ways. Comparative research is a world of its own. Distinct methodological dilemmas have surfaced as comparative constitutional law has been challenged by the growth of comparative constitutional studies, which appears to have taken comparative constitutional law dilemmas one step further,³ whereas focus on change sets novel challenges.

1 X. Contiades and A. Fotiadou, ‘Models of Constitutional Change’ in X. Contiades (ed), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Routledge 2013) 417–468, 418.

2 R. Albert, ‘Introduction: The State of the Art in Constitutional Amendment’ in R. Albert, X. Contiades and A. Fotiadou (eds), The Foundations and Traditions of Comparative Constitutional Amendment (Hart Publishing 2017) 1–19.

3 R. Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press 2014); G. Frankenberg, Comparative Constitutional Studies between Magic and Deceit (Edward Elgar Publishing 2018).

The concept of constitution, that is, defining what a constitution is, remains open to perpetual discussion from numerous perspectives including constitutional law, history and political thought. Change, that is, to become different, has many facets. With regard to constitutions, evolution, incremental change, abrupt change, endurance, resilience and backslide are different forms of change. The study of change is a unique conceptual lens: when Western missionaries introduced modern chemistry to China in the 1860s, they called this discipline hua-hsueh, literally, ‘the study of change’.⁴ Similarly, the study of constitutional change can be described as capturing the essence of what a constitution is.

Focus on constitutional change does not undermine the value of constitution-making, which remains as important as ever. Conversely, it provides constitution-writing with a valuable new toolkit as it has become obvious that the future of novel constitutions depends on their amendability. Thus, the drafting of formal amendment rules acquires particular importance, as it is during moments of transformational change that constitutions develop their full-fledged functions. Even in the case of the constitutions perceived as imposed, it is the manner in which they change that determines ownership.⁵

CCC examines the operation of constitutional change mechanisms and the way they interact in different environments. CCC, the younger child of comparative constitutional law, and its interdisciplinary counterpart comparative constitutional studies, is growing rapidly through the work of numerous constitutional scholars and political scientists, comparatists and historians. A novel conceptual lens for approaching constitutions and constitutional orders is thus available for all whose work relates to the study of constitutions.

The novel field of study of CCC relates to the broader discipline of comparative constitutional studies. CCC qualifies as a distinct disciplinary field, since it has a particular object of research (constitutions shared with comparative constitutional studies and comparative constitutional law, with a focus on change), it has theories and concepts to organize the accumulated knowledge, it uses specific terminologies, a specific language adjusted to its research object, and has developed specific research methods tailored to its specific research requirements.⁶

In 2014, during the International Association of Constitutional Law World Congress held in Oslo, the research Group on Constitution-making and Constitutional Change was convened by Xenophon Contiades to encourage the comparative study of constituent and constituted power and to bring together the scholars working in this field (https://constitutional-change.com). It is also worth mentioning that a thematic-specific book series on CCC exists: the Routledge Series on Comparative Constitutional Change edited by R. Albert, X. Contiades, Th. Fleiner and A. Fotiadou.

4 J. Reardon Anderson, The Study of Change: Chemistry in China, 1840–1949 (Cambridge University Press 2003).

5 See R. Albert, X. Contiades and A. Fotiadou (eds), The Law and Legitimacy of Imposed Constitutions (Routledge 2018).

6 See A. Krishnan, ‘What are Academic Disciplines? Some Observations on the Disciplinarity vs. Interdisciplinarity Debate’, ESRC National Centre for Research Methods, Working paper 03/09. Available at: http://eprints.ncrm.ac.uk/783/1/what_are_academic_disciplines.pdf.

Already the study of CCC is an integral part of the syllabus of comparative constitutional law classes, while new modules that focus exclusively on CCC have started to be taught. Thematic-specific tables on CCC are parts of the programme of the most prestigious international conferences. A specific jargon is in the making: amendability, unamendability, endurance, resilience, rigidity, rigidities, constitutional flexibility, adaptation, constitutional design, incremental change, revision, replacement, ownership-imposition, flexible-rigid, difficulty of change, formal amendment rules, formula, revision, amendment, replacement, desuetude, total revision, eternity clauses, procedural-material limits, etc.

The language of CCC develops through comparative routes: the input of distinct legal cultures, the translation of words from language to language (and inevitably from and to English) is a process of language construction. This language allows comparative constitutional scholars from around the world to communicate on the same level of comprehension and further their research. For example, writing about constitutional law in country X is written differently when addressed to an exclusively domestic audience than when it is expected to be read by international readers. To follow up on the example, pinning down a constitutional moment in legal order X entails connotations about the drivers of constitutional change, which are subsequently integrated in a novel context (and also impacted by this process). Constitutional comparison is also a language, a code of communication.

Fundamental concepts are scrutinized. The rigid/flexible and the formal/informal change dipoles, viewed through a comparative lens, emerge not as much as opposites but as guides to understand constitutional change. The rigidity/flexibility scheme translates to levels of rigidity. The formal/informal dipole, also described as explicit/implicit, indicates the distinctions between changes to the text of the constitution and changes in its meaning through interpretation and practice.⁷

The pioneers

The journey of CCC started with pioneering work that began addressing the complexity of constitutional design, rigidity and change: B.E. Rasch in ‘Rigidity in Constitutional Amendment Procedures’,⁸ B.E. Rasch and R. Congleton in ‘Amendment Procedures and Constitutional Stability’,⁹ D.S. Lutz in ‘Principles of Constitutional Design’¹⁰ and I. Lorenz, ‘How to Measure Constitutional Rigidity: Four Concepts and Two Alternatives’¹¹ set out to explain aspects of constitutional change that were (perhaps) taken for granted by constitutional scholars. Contemporary writing on constitutional change owes a great deal to debate.

In a parallel world, Sanford Levinson had edited a volume where top US scholars probe amendment as a response to imperfection.¹² These works mark the beginning of a dialogue focused on rigidity, amendment process and the use of empirical methodology. It is a safe bet that all around the world constitutional scholars have worked in their native languages on the topic. This work slowly infiltrates CCC theory through the work of comparatists who write in English.

7 Contiades and Fotiadou (n 1) 459.

8 E. Smith (ed), The Constitution as an Instrument of Change (Forlag 2003) 77.

9 R. Congleton and B. Swedenborg (eds), Democratic Constitutional Design and Public Policy: Analysis and Design (The MIT Press 2006) 319.

10 D.S. Lutz, Principles of Constitutional Design (Cambridge University Press 2006).

11 I. Lorenz, ‘How to Measure Constitutional Rigidity: Four Concepts and Two Alternatives’ (2005) 17 Journal of Theoretical Politics 339.

12 S. Levinson (ed), Responding to I...