towards a new conceptualism in comparative constitutional law, or

I•CON (2014), Vol. 12 No. 3, 603–625 doi:10.1093/icon/mou041

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Towards a new conceptualism in comparative constitutional law, or reviving the German tradition of the Lehrbuch

Christoph Möllers* and Hannah Birkenkötter**

This article provides a positive reassessment of conceptual thinking for comparative con-stitutional law. While the realist claim has known a remarkable success story, both in comparative constitutional law and elsewhere, there is a growing unease that the realist approach might fail to capture essential aspects of legal phenomena. Empirical research seems hardly possible without conceptual efforts, and if the line between the empirical and the normative is blurred, concepts can serve as tools to provide an alternative descrip-tion of reality without being inherently affirmative. The place of the conceptual affects the form through which legal knowledge is presented: for comparative constitutional law, this means that a dialogue ought to take place not only on the content, but also on the form through which comparative efforts are undertaken. The article ends with a short reflection on current scholarship in comparative constitutional law, its forms, and the methodological challenges that lie ahead.

1. IntroductionOne and a half centuries after seminal critics of then-contemporary law, such as Oliver W. Holmes and Rudolf von Jhering, claimed the supremacy of the empirical over the conceptual for legal research, it seems time for a reassessment. To be sure, the realist movement has a remarkable success story: It helped to sort out the ideological content of legal forms and stood at the beginning of the critical movement; it became dominant in the United States (and, therefore, gained global importance); and it helped to detect

* Professor of Public Law and Jurisprudence and Chair for Public Law and Legal Philosophy at Humboldt-Universität zu Berlin; judge at the Supreme Administrative Court of Berlin and a Permanent Fellow at the Berlin Institute for Advanced Study. Email: [email protected].

** Research associate at Humboldt-Universität zu Berlin, Chair for Public Law and Legal Philosophy. Email: [email protected].

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new methods (such as economic analysis) and to found new fields (such as feminist legal research). Still today, the realist claim is powerful. But it is also true that we may feel the disadvantages of the legal realist approach more urgently today than before. Beyond a growing distance from the unavoidably reason-giving legal practice and an unaccounted preference for critique over construction, it may become more and more clear that much of the realist literature provides a very good answer for a very American question.

The following account tries to outline a positive reassessment of conceptual think-ing for the field of comparative constitutional law. This requires a short reflection on what we mean by conceptual thinking in law and what its implications for legal research could be (Section 2). One important implication is the academic literary form in which we present legal knowledge for education and practical use, be it in casebooks, monographs, commentaries, treatises or at least also—to make use of the German term—in Lehrbüchern (Section 3). We will end our argument with too short a reflection on examples from comparative constitutional law (Section 4).

2. Concepts in law“The life of the law has not been logic; it has been experience.”1 Holmes’s famous dic-tum had an influential anti-conceptual implication, because “logic” refers to the self-referential truth-claim of formalist conceptual legal thinking2 as it was, allegedly, dominant in the American as well as in the continental European legal academia in the second half of the nineteenth century.3 What do we mean by “concept” (Section 2.1)? Do concepts suffer from indeterminacy (Section 2.2) or loss of reality (Section 2.3) or is not all legal thinking ultimately nolens volens conceptual (Section 2.4)?

2.1. A short definition of concepts

By concepts, we will refer in this article to linguistic terms that can claim two proper-ties: first, they comprise more than one element, i.e. they refer to a group of elements that have a common property. Second, this property cannot be defined by the mere sum of the elements they comprise, i.e. concept in our sense functions intensionally, not only extensionally: this seems to be true for classical legal institutions such as “property” or “subjective right.” The ontological status of concepts is widely contested and has been so at least since Plato’s theory of ideas.4

This is not the place, nor is it necessary to go into the details of the philosophi-cal debate on concepts.5 But, so far, it seems safe to say that all attempts to reduce

1 Oliver Wendell HOlmes, Jr., THe COmmOn laW (1881), at 1.2 For the legal context of the quote, see neil duxbury, PaTTerns Of ameriCan JurisPrudenCe, ch. 1 (1995); for the

wider context, see lOuis menand, THe meTaPHysiCal Club (2002).3 For a careful comparison, see maTTHias reimann, HisTOrisCHe reCHTssCHule und COmmOn laW (1993).4 For an overview, see Article Concepts, in Stanford Encyclopaedia of Philosophy, http://plato.stanford.edu/

entries/concepts/ (last updated 17 May 2011; last accessed 4 June 2014).5 This account owes especially to JOCelyn benOisT, COnCePTs (2012) and WOlfgang Künne, absTraKTe

gegensTände (2d ed. 2002).


http://plato.stanford.edu/entries/concepts/

http://plato.stanford.edu/entries/concepts/

Towards a new conceptualism in comparative constitutional law 605

concepts to factual entities that can be described in a purely empirical fashion seem to have failed. In other words, there “are” concepts, but they occupy neither time nor space, they are abstract entities.

One important reason for this assumption might be found in the fact that even any empirical scientific endeavor seems hardly possible without conceptual efforts. It may be for this reason that philosophers from the Anglo-American pragmatist tradition are reevaluating the relation between the conceptual and the empirical in a way that makes much use of German philosophy around 1800, especially of Kant and Hegel.6 Again, this is a vastly disputed development within the philosophical debate. But the claim that concepts like “property” or “rule of law” are mere fictions7 with a deficient ontological status that have to be reduced to something real, i.e., empirically measur-able, seems at least as metaphysically demanding as the claim for the conceptual itself.

2.2. Indeterminacy and application

Perhaps the most important element in the realist critique of legal concepts has stressed their indeterminacy.8 This is surprising because there is virtually nobody in the classical formalist era of “Begriffsjurisprudenz”9 or common law formalism à la Langdell to have claimed that legal concepts were determinate, i.e., that they give an unequivocal and clear answer to their own limits. It does not seem too exaggerated to assume that conceptual “determinacy” is an invention of its own critics.

One very powerful implication of this alleged tradition for comparative constitu-tional law was the invention of another pseudo-tradition: the tradition of the con-tinental judge who faithfully applies legal rules and is therefore just “la bouche de la loi.”10 This myth is part of the dominant narrative about a “classical,” though out-dated, continental concept of separation of powers that has only recently been over-come.11 But the story of the judge as a merely mechanical applier of defined legal rules is itself historically wrong for France as well as for Germany.12

The historical claim of the formalist traditions has always been more modest, more complex, and more ambiguous. This claim does not seem to be philosophically outdated: concepts do have borders, but no limits.13 Those traditions operate with

6 See infra, Section 3.7 The father of this form of critique is Jeremy Bentham, but it is even far from clear if fictions are necessarily

“unreal.” See guillaume Tusseau, Jeremy benTHam. la guerre des mOTs 106–18 (2011).8 Brian Leiter, Legal Indeterminacy, 1 legal THeOry 481 (1995).9 There is an important anti-critical literature on the alleged lack of realism of German Begriffsjurisprudenz:

ulriCH falK, ein geleHrTer Wie WindsCHeid. erKundungen auf den feldern der sOgenannTen begriffsJurisPrudenz (1999); Hans-PeTer HaferKamP, geOrg friedriCH PuCHTa und die begriffsJurisPrudenz (2004).

10 Even the quote is mostly misunderstood: it does not reduce the judge to a mere executor of the law. See Regina Ogorek, De l’Esprit des légendes oder wie gewissermaßen aus dem Nichts eine Interpretationslehre wurde, 2 reCHTsHisTOrisCHes JOurnal 277 (1983).

11 Widely used is this wrong narrative as a background in aleC sTOne sWeeT, gOverning WiTH Judges (2000).12 regina OgOreK, riCHTerKönig Oder subsumTiOnsauTOmaT (1986); JaCques Krynen, l’emPrise COnTemPOraine des

Juges (2012).13 benOisT, supra note 5, at 155. The difference in the French original is formulated in German: Schranke vs.

Grenze.


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distinctions, but do not suppose that such distinctions will be clear-cut, nor that they are self-sufficient. One important formula to describe the working of concepts that has been used by H.L.A. Hart, albeit in a somewhat unfortunate way,14 and has enjoyed renewed attention in the philosophical discussion today, is the “porosity” of concepts.15 The idea of porosity tries to grasp the fact that conceptual practices can contain cer-tain expectations in a reliable way, but that they will also have blind spots, situations in which they cannot give an answer to the question of their own applicability.

The common institutional feature of every legal system is the presence of a judge and his or her technique of deciding cases. Even accepting all the differences in proce-dure and methodology that can be perceived between different legal orders, this cul-tural technique seems to be one of applying concepts. Robert Brandom has used the figure of the common law judge as his main example to describe how concepts are used, and why the question of whether the use of concepts is either determinate or totally open is flawed.16 Neither the idea of determinate application nor the counter-idea of pure, fresh lawmaking, can grasp what lawyers do with concepts.17

To accept the judge as an actor, even if she has incentives that are not identical with “what the law says”18 means to reject the expectation of legal determinacy. In other words, it is not a deficiency of concepts that they are indeterminate; it is rather a problem of making use of a machine-like model in adjudication in order to be disap-pointed by that practice. It is one of the few uncontested features of concepts that their application cannot be understood in terms of logical deduction.

2.3. Conceptualism and reality

A second important strand in the critique of conceptualism claims that conceptual-ism lacks reality: arguing in concepts seems to risk being disproved by factual circum-stances. This critique has been powerful both in the continental and in the American traditions.

We must accept that legal decision-making has many strategies to immunize itself from factual circumstances in order to find a satisfying self-referential, and therefore sometimes fact-blind, solution to a legal problem. We also know that the reference to legal texts is not sufficient to understand the reality of a legal system. Article 67 of the North Korean Constitution guarantees freedom of expression, and it is obvious that this guarantee is empty and that we should not make use of it in any comparative constitutional effort.

14 Hart develops the difference between a core and a penumbra, which has been much criticized.15 Friedrich Waismann, Verifability, in lOgiC and language (firsT series): essays, at 117, 118–124 (Gilbert Ryle

& Antony Flew eds., 1951), used and reformulated in benOisT, supra note 5, at 133–171.16 rOberT brandOm, reasOn in PHilOsOPHy 84–92 (2009).17 One of the dominant topics of realist critique says that law cannot be “found,” but is “made” by courts.

For the problems to “make” something, see miguel Tamen, THe maTTers Of THe faCT: On invenTiOn and inTerPreTaTiOn 16–26 (2001).

18 Remarkably enough riCHard POsner, WHaT Judges THinK (2010) has developed a realist description of judi-cial incentives that leads back to the concept of correct application of the law via its reputation-preserv-ing function within the professional community.



This rather trivial example hints at a problem that is well known in the method-ology of comparative constitutional law in which texts serve as the main reference to identify the state of the law.19 But different from a widespread realist assumption, which is perhaps most elegantly expressed in Roscoe Pound’s distinction between “law in the books” and “law in action,”20 the solution to the problem lies neither in a rejec-tion of text in favor of social reality or context, nor in the juxtaposition of the con-ceptual and the empirical: concepts are not texts, and literalism has got nothing to do with conceptualism. Concepts are tools to describe reality. Obviously, they can fail and miss the point, but it seems hard to assume that there is any way to avoid this problem except by improving concepts.

To make more understandable what we mean by conceptualism in constitutional comparison, one may refer to a passage in Hegel’s philosophy of law in which Hegel defines law as “the realm of actualized freedom, the world of spirit produced from within itself as a second nature.”21

Hegel’s use of the originally Aristotelian notion of second nature to describe law can be adapted without accepting any Hegelian myth of statehood. As read by an important branch of neo-pragmatist philosophy,22 the concept of second nature refers to the need for a framework that does not strictly separate between natural and social phenomena and, therefore, does not evoke a methodological dichotomy between the conceptual and the empirical. Legal concepts may serve as a tool not only to justify but also to explain legal phenomena. The reference to a legal concept may be one possible answer to the question of how a legal system works. This kind of answer need not pro-duce an overall uncritical account of a given legal practice. Moderate formalism is not necessarily affirmative, though a powerful strand of legal realist thinking has assumed that it is. On the contrary, only by developing legal concepts can we find a justified critical attitude to the institutional phenomena we are interested in.

Therefore, legal concepts may not only be used within a practical legal argument, but also within a descriptive framework that tries to explain the institutional devel-opments of constitutional orders. To be sure, institutional developments do not just express patterns of legitimacy, of freedom, as it is assumed in the Hegelian theory of law. But even given the fact that constitutional institutions depend on various politi-cal, economic, and social contexts, the question of their legitimate organization may be one of the factors that must be assessed to fully describe them. This claim is based on the pragmatist (and post-Hegelian) assumption that the distinction between nor-mative and descriptive assumptions is only a relative one.23 We cannot neatly separate the normative from our social practices; we need it to understand these practices. This argument is, again, directed against the assumption that takes the scientific treatment

19 A highly problematic way to identify texts with concepts can be found in the work of Peter Häberle.20 Roscoe Pound, Law in Books and Law in Action, 44 amer. l. rev. 12 (1910).21 geOrg WilHelm friedriCH Hegel, elemenTs Of THe PHilOsOPHy Of rigHT 4, 35 (14th reprint, H. B. Nisbet trans.,

2010) (1820).22 JOHn maCdOWell, mind and WOrld 84–92 (1994); Christoph Halbig, Varieties of Nature in Hegel and

McDowell, 14 eur. J. PHil. 222 (2006).23 Hilary W. PuTnam, THe COllaPse Of THe faCT/value diCHOTOmy 28–45 (2002).


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of facts as the only reliable method to understand the law. If the distinction between empirical and normative propositions is in fact blurred, it would be strange to treat everything as empirical propositions. The idea of “naturalizing” legal theory,24 there-fore, seems to use a rather outdated concept of “nature” and a reference to empiri-cal science as the only valid form of explanatory practice.25 Yet the bad reputation that concepts still have in legal theory, their critique as “formalistic,” seems no longer backed by much of the philosophical discussion.26

2.4. Historicizing law

Beyond the belief in empirical sciences, there is yet another way of reacting to the cri-sis of conceptualism: by historicizing legal concepts. The work of Martti Koskenniemi in the theory of public international law illustrates this point very neatly. After having given a tantalizing and devastating analysis of the core doctrines of public interna-tional law,27 he turned his interest to the history of the discipline.28 History is seen as an alternative to doctrine—a characteristic move that has stood at the beginning as well as at the end of historicism,29 when the problem of justification became imminent for practical philosophy and theology.30 At the same time, this strategy comes with its own set of problems: Koskenniemi, for example, opts to focus on individual lawyers as actors in specific social settings, rather than describing epochs of the history of inter-national law.31 In this approach, he limits himself to instances when international lawyers were united by an overarching faith in public law institutions that provided a common backdrop for their work, an esprit d’internationalité.32 This explains why Koskenniemi has to keep distance from the present. It also shows that he can only give a partial answer to the problem. While history may help us in understanding our pres-ent situation—this is Koskenniemi’s explicit aim, and he tries to achieve this aim by doing away with rigorous methodology—it is only one piece of the puzzle of assessing the law as it is today. This is not meant to diminish historical accounts. Historicization is a valid response to the (post-)modern uncertainty about whether law is an auton-omous phenomenon or whether it is determined in its entirety by external factors. It is illuminating to trace the intellectual accounts of individuals at a time when the epistemological quality of legal science was less challenged. But historicizing is

24 Once again, see brian leiTer, naTuralizing JurisPrudenCe 183–199 (2007).25 W.v.O. quine, ePisTemOlOgy naTuralized in ePisTemOlOgy: an anTHOlOgy 292 (Ernest Sosa & Jaegwon Kim eds.,

2000).26 maTTHias KlaTT, maKing THe laW exPliCiT, ch. 3 (2008).27 marTTi KOsKenniemi, frOm aPOlOgy TO uTOPia (2d ed. 2008).28 marTTi KOsKenniemi, THe genTle Civilizer Of naTiOns (2001).29 Friedrich K. v. Savigny, Ueber den Zweck dieser Zeitschrift, 1 zeiTsCHrifT für gesCHiCHTliCHe reCHTsWissensCHafT

1 (1815); Ernst Troeltsch, Über historische und dogmatische Methode in der Theologie, in 2 ernsT TrOelTsCH, zur religiösen lage, religiOnsPHilOsOPHie und eTHiK. gesammelTe sCHrifTen 729 (Mohr 1913) (1908).

30 Hans JOas, die saKraliTäT der PersOn, ch. 4 (2011).31 Koskenniemi, supra note 28, at 6–8. A recent example from German literature is Florian Meinel’s much

acclaimed work, which seems to opt for a similar combination of biographical account and intellectual history: see FlOrian meinel, der JurisT in der indusTriellen gesellsCHafT. ernsT fOrsTHOff und seine zeiT (2011).

32 Koskenniemi, supra note 28, at 513, 515.



only one possibility of describing law as a conceptual entity. This is made obvious by Koskenniemi’s plea for a culture of formalism, which ends his historical account.33 It seems important to highlight the term “culture,” because after the structural decon-struction of international law that Koskenniemi delivered before turning to history, there is no more room for formal/formalist conceptions of law in the traditional sense. Koskenniemi’s understanding of formalism is one that rids itself of any substantive claim; it is, to use his own term, “empty.” Yet, this emptiness does not mean that for-malism should be understood only as a jurisprudential doctrine. Rather, the culture of formalism allows for articulating a particular lack, and it does so in universal terms, in a language that aspires to universality. Because any claim for universality will even-tually reveal itself as disguised particularity—this is the main insight from the realist critique—each claim is inevitably limited in time and subject to change over time. But at the time the claim is made, it is a case of universality, if only a particular one.34

2.5. What ought to be done?

No doubt, our attempt to redeem the concept of legal concepts is contested. The ques-tion is what constitutional theory should do with this level of contestation. Two con-clusions seem to be adequate. First, we can observe the fact that the usefulness of the conceptual remains contested, but that there is a revival of the conceptual at least in a part of the philosophical discourse.35 This shows us at least that there is no self-evident need to abandon the conceptual in favor of the empirical that calls itself “realist.”

Second, we have to take into account that there is an undeniable practical presence of the conceptual in every legal system.36 This is the result of the role of the judge as a reason-giving decision-maker. Obviously, we must not forget the realist lesson that this practical presence of the conceptual may be deceiving. Of course, concepts can be used to mask a practice that is not actually based on that practice’s initial concep-tual claim. But this move, developed by Marx, and today most influentially carried out by Foucauldian theory, has its own problems: it creates a descriptive foundational-ism in which things like economic distribution or “power” are the basis for everything else, although these “fundaments” themselves are nothing less than raw empirical facts which are in dire need of conceptualization. Much of realist legal theory has played the game of looking for a substitute, claiming that law is “really” not law, but this or that. But this move37 is in itself conceptually demanding.38 In the case of law, the strange effect of ignoring the practical self-description of the legal practice is to

33 Id., at 503–508.34 JaCques ranCière, la mésenTenTe 188 (1995).35 JOCelyn benOisT, COnCePTs (2012) and WOlfgang Künne, absTraKTe gegensTände (2d ed. 2002) are two

ex amples; neo-pragmatist authors like Robert Brandom and John McDowell would be others.36 Stanley Fish, The Law Wishes to Have a Formal Existence, in sTanley fisH, THere’s nO suCH THing as free

sPeeCH: and iT’s a gOOd THing, TOO (1995).37 For a wonderful philosophical critique of this argument: Hans Blumenberg, Dies ist in Wirklichkeit nur

jenes, in Hans blumenberg, die verfüHrbarKeiT des PHilOsOPHen 37–48 (2000).38 For a rare anti-critique of the common critique of formalism, see arTHur l. sTinCHCOmbe, WHen fOrmaliTy

WOrKs. auTHOriTy and absTraCTiOn in laW and OrganizaTiOns (2001).


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declare the language of the law a language of deception. We will now have to see what that could mean for one specific legal field: comparative constitutional law.

3. How to present a legal field: concepts and cultures

3.1. The crisis and the casebook in comparative constitutional law

Examining the state of comparative constitutional law today, we make out a meth-odological crisis or, at least, a considerable methodological uncertainty. This is a good sign; it shows that the need for comparison is growing, and the question of how to compare constitutions has become more urgent. For the practice of legal reasoning, there is no purely quantitative answer to the question of how to conduct compara-tive studies. If we accept that there is a particular side to constitutional law—the side of specific normative arguments that work differently in different contexts—we must seek out a research agenda that fits this description.

But does that mean, on the other hand, that we should only examine cases? Or, better yet, in an amazingly self-referential move that has dominated comparative constitu-tional law for quite some time, should we examine only cases concerned with foreign materials that put comparative law into practice?39 The slow rise of casebooks in com-parative constitutional law is both a sign of a growing interest in the subject and of the intellectual strength of the Anglo-American tradition of teaching law. Both develop-ments are welcome, but it still seems important to find other forms of presentation.

The most obvious problem of casebooks is the selection of cases. If one legal order could serve as a kind of common language of comparative law, this would seem less problematic. US constitutional law has played this role for a long time, but its relevance is declining, without there being any legal order in sight that could take its place. It is the important insight of the quantitative empirical branch of constitutional compari-son that the reference to some important legal orders as such won’t do, but this insight does not present a solution to the problem.

The second problem facing casebooks is the fact that they are limited to judicial lawmaking. If quantitative empirical comparison tends to ignore judicial reasoning, casebooks tend to take it as the whole of constitutional law. This fits well within a sometimes affirmative, sometimes critical academic limitation to constitutional courts and their jurisprudence. This reduction is especially unsatisfying for the institutional side of constitutional law, for issues like separation of powers or federalism in which even constitutional courts must be understood as only one part of the whole.

Casebooks seem to be the solution to the problem of how to present the law under the auspices of legal realism, even though the case method is older than its realist critique. Casebooks could survive the realist movement because they seemingly avoid conceptual solutions40 and because the verbatim reproduction of judicial decisions

39 This topic is an American obsession for obvious domestic political reasons, as it seems to represent the political frontlines. viCKi H. JaCKsOn, COnsTiTuTiOnal engagemenT in a TransnaTiOnal era 17–39 (2013).

40 But see Teitel’s critique, infra Section 4.3.



conveys an empirical flavor. Quoted decisions may seem to be raw data for legal research, though this view is probably incompatible with a strongly realist claim according to which decisions are just the result of a causal political or economic basis to which serious research should be addressed. In other words, casebooks look like a compromise between the realist critique of the law and the necessity of teaching it.

3.2. The place of the conceptual: German and American answers to a legal case

One important insight into the differences between the American realist and the sys-tematic German ways of conceptualizing law lies in the ways law is taught. This is especially remarkable insofar as American and German legal education have a lot in common, which distinguishes them from the legal education in most other countries of the world: in both systems, law is taught through cases. In Germany, however, teaching law through cases does not mean using casebooks, and this gives us a hint about a crucial difference: approaching a case, German students today are still asked to present one satisfying solution. Though they do not have to write a judgment, they have to take the role of the judge who has to present the correct, or at least the best, solution to a case. Much of the strength of American legal education lies in the fact that students have to change roles when approaching a case. They are less likely to play the judge than to take on the role of either or both of the parties. They are not deciding, but arguing cases. The follow-up questions to a case in an American case-book are representative for that approach: different roles have to be taken, questions have to remain open, and open-ended. For a German reader, this approach seems to be remarkably aporetic. And indeed, it is one of the most fascinating and instructive elements of American constitutional practice that fundamental questions, such as the meaning of the interstate commerce clause41 or the existence of a common people of the United States,42 seem never to be settled. The contingencies of modern law are, as it seems, therefore much more adequately addressed in the American legal education. Modern law deserves an aporetic approach.

But there is a twist. To open up Pandora’s box of contingency may be enlightening, but it may also lead to a self-destructive cynicism, to a systematic under-estimation of conceptual forms. Legal form requires a certain attitude from its user, a mindset43 that accepts formalism not as dogma, but as a necessary tool to practice law. The realist project may lead to a purely instrumental approach to the law; it becomes a func-tion of something else, as H.L.A. Hart described American jurisprudence so convinc-ingly:44 either a realist nightmare or the Dworkinian noble dream; either expressing

41 After NFIB v. Sebelius, 567 U.S. __ (2012); Craig L. Jackson, The Limiting Principle Strategy and Challenges to the New Deal Commerce Clause, 15 u. Pa J. COnsT. l. 11 (2012).

42 An impressive example is U.S. Term Limits v. Thornton, 514 U.S. 779 (1995). Kathleen Sullivan, Duelling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 Harv. l. rev. 81 (1995).

43 Martti Koskenniemmi, Constitutionalism as Mindset. Reflections on Kantian Themes about International Law and Globalization, 8 THeOreTiCal inquiries in laW 9 (2007).

44 Herbert L.A. Hart, American Jurisprudence through English Eyes: The Nightmare and the Noble Dream, 11 ga. l. rev. 969 (1976–77).


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higher moral values, or the slave of politics and profit, but never the law as a structure as such.

The European continental way of legal education still seems to have faith in a legal solution as such, and this necessarily demands a conceptual approach. As a matter of fact, this approach may not only lead to methodological naïveté, to the belief that there is a “right” solution, it might even end up in an authoritarian form of legalism:45 “The law” has not only answers to give but, in addition to that, once an answer is given, nothing remains to ask, especially not with regard to its justification. It is easy to understand that this approach has a hard time finding a legitimate place for any form of critical jurisprudence.46 So, we may see the German way of legal education as the result of an over-blown legalist conceptualism, while we see in the American way the consequence of an exaggerated disbelief in any form of conceptual self-value of the law. This is especially important for a comparative effort, as we might want to include these differences into any substantial form of comparison. But before we come back to the question of comparison we will have to look at the form of the “Lehrbuch.”

3.3. The decline of the Lehrbuch and the problem of doctrine

One important legacy of German legal scholarship is the idea of the Lehrbuch, the systematic treatise on an area of law. It is no coincidence that the Lehrbuch rose and declined within roughly the same period that Koskenniemi identifies as the rise and fall of international law. The heyday of the Lehrbuch was during the second half of the nineteenth century. But even later in the Federal Republic, remarkable works of this type were written on areas like contracts (Flume), constitutional law (Hesse), European law (Ipsen), administrative law (Forsthoff), and criminal law (Jakobs).47 Slowly, this form has declined, fewer Lehrbücher are written, and their quality is with some excep-tions rather low. But where does the quality of the Lehrbuch lie and what does this have to do with our interest in the conceptual in comparative constitutional law?

It is important to see, but it is rarely noticed, that the systematic claim of these works stemmed from a rather personal choice of their underlying conceptual framework. Lehrbücher were not “objective” in that they drew some system from “positive” law—this is the decisive difference from a treatise and an even greater one from a re-state-ment. There is something deeply anti-positivist, anti-black-letter in the approach of all

45 Vivien Grosswald Curran, Formalism and Anti-Formalism in French and German Judicial Methodology, in darKer legaCies Of laW in eurOPe 205 (Christian Joerges & Navraj S. Galeigh eds., 2003).

46 Again, the comparison with (now Protestant) theology is interesting for the German case, because around 1800, there were two contemporary figures (who personally knew each other) responsible for the fact that one doctrinal discipline was able to take the path to critical research (theology), while the other (law) did not achieve the same: to confront Schleiermacher and Savigny might help explain these different paths.

47 The mentioned books are Werner flume, allgemeiner Teil des bürgerliCHen reCHTs (4th ed. 1992); ernsT fOrsTHOff, leHrbuCH des verWalTungsreCHTs (10th ed. 1971); Hans PeTer iPsen, eurOPäisCHes gemeinsCHafTsreCHT (1972); KOnrad Hesse, grundzüge des verfassungsreCHTs (20th ed. 1995); günTHer JaKObs, sTrafreCHT. allgemeiner Teil (2d ed. 1993); bOdO PierOTH & bernHard sCHlinK, sTaaTsreCHT ii, grundreCHTe (28th ed. 2012); geOrg friedriCH PuCHTa, Cursus der insTiTuTiOnen (1841–1847); friedriCH Karl vOn savigny, sysTem des HeuTigen römisCHen reCHTs (8 vol., Berlin 1840–1849); Carl sCHmiTT, verfassungsleHre (1928).



of these books, if you understand positivism in the sense of taking the law as some-thing “given.” Lehrbücher were personal in that they worked with the conceptual pref-erences of their respective authors: be it a self-made Kantianism (Savigny), Schelling’s philosophy (Puchta), a Luhmannian Hegelianism (Jakobs), a Schmittian account of existential politics (Schmitt), a Schmittian account of the decline of the state in a technocratic environment (Forsthoff), a liberal-individualist skepticism towards bal-ancing tests (Pieroth/Schlink), a strong anti-authoritarian belief in individual eco-nomic autonomy (Flume), or a hermeneutic disbelief in the distinction between facts and norms (Hesse). It was this encounter between one of many possible theoretical frameworks and the legal materials that made this form fruitful. The high point of the Lehrbuch was therefore the time of the success of many different Lehrbücher or other systematic accounts with contradicting interpretations of their respective field. The systematic claim of one book made only sense as long as the principles that founded the “system” remained contested by other “systems.” The system of one Lehrbuch had to address the plurality of other systematic approaches. Therefore, there was always something intellectually inspiring but practically unreliable about the famous Lehrbücher. They could neither serve as a restatement of the law, used by practitioners, nor as a trustworthy source to prepare a legal exam for students. Their function was not to inform the legal practice but to change how we look at a particular legal order. They represented in a literal sense a deeply theoretical project, a new perspective. And it is far from clear if they were really used for legal education and how much relevance they had in the short run on the legal practice.48

The decline of the Lehrbuch in Germany came at the moment in which the necessity of objective restatement of the law became an academic project. Since the days of the Codex Hammurabi, the need for an authoritative collection of legal norms has been a social fact. But it is far from clear whether an academic endeavor is necessary to fulfill this need. If law schools and law departments are places where to think about law, they ought to be places of contesting, not of collecting norms. The moment in post-war Germany when this insight got lost in favor of restating the idea of legal edu-cation that merely had to prepare practitioners49 marked the beginning of the end of the Lehrbuch. A case in point is Theodor Maunz’s book on constitutional law, the most prominent and successful treatise on constitutional law in post-war Germany.50 While its title and style may have alluded to the old Lehrbuch tradition, its success can more likely be traced back to its concise presentation of the most important problems in cur-rent constitutional law, but without an overarching theoretical framework. Rather, it became a reliable companion for practitioners and students alike, a textbook stricto sensu, where one could find a solution to a specific problem of constitutional law.51

48 This temporal caveat seems to be important as much of the critique of legal education as being too theo-retical seems to think in very short terms. No student in the German 1920s prepared their exams with Kelsen and no attorney used Smend for a case, but the way these authors changed our view of constitu-tional law has become much more practically relevant than any nutshell.

49 Influentially described for German constitutional law by Bernhard Schlink, Die Entthronung der Staatsrechtswissenschaft durch die Verfassungsgerichtsbarkeit, 28 der sTaaT 161 (1989).

50 THeOdOr maunz, deuTsCHes sTaaTsreCHT. ein sTudienbuCH (1951).51 miCHael sTOlleis, gesCHiCHTe des öffenTliCHen reCHTs in deuTsCHland band iv: 1945–1990, at 143 (2012).


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Many reasons may account for the success of Maunz’s book at the time. There surely was a market demand for reliable books that prepared for the state exam. But even beyond this purely economic reason, there appears to have been a lack of conceptual imagination especially in public law that would have allowed for a new Lehrbuch, until Konrad Hesse published his Lehrbuch—the first of its kind in constitutional law since the end of World War II—in 1966.

There are several possible explanations for this growing lack of conceptually inno-vative thought. For one, if we understand constitutional law generally as law that reg-ulates the conduct of both state authorities and individuals within a political entity, law that organizes and structures politics, then a conceptual move in constitutional law requires an idea of the political; and making the political explicit was something that post-war German society altogether neglected until the early 1960s.52 Another reason was a misconceived idea of legal doctrine and of the division of labor between legal academics and the legal system, a problem we can also perceive in other doctrinal disciplines such as theology.53 Legal academia does not have the political legitimacy to create new law. This is Kelsen’s point, which has recently regained much promi-nence in German methodological discussions.54 But it is far from obvious how much loyalty the legal academia owes to the legal system. Here, Germans have to learn from the American academia, and from the insight that today’s heresy may be tomorrow’s progress.55 But to be sure, the pressure not to deviate from the letter of the law, i.e., today from the decisions of the German constitutional court, is not political, it rather comes from the students and the system of a state exam that does not allow for much variation.

4. Perspectives on comparative constitutional law

4.1. Methodological progress in comparative constitutional law

What do these developments mean for comparative constitutional law? The answer is twofold. First, we should understand the forms in which comparative constitutional law is presented as forms of one specific legal or constitutional tra-dition, not belonging to all of them. This is the inherent paradox of any presenta-tion of comparative law: it uses forms that are close to one legal order in order to represent many.

Comparative law is an asymmetric endeavor. Intellectual equidistance to two or more different legal systems is a rare achievement, and perhaps not even an interesting

52 CHrisTOPH möllers, der vermissTe leviaTHan. JurisTisCHe sTaaTsleHre in der bundesrePubliK 31–44 (2008).53 Many of the most important theologians in or around the Second Vatican Council were at the moment

of the Council or later under curial censorship: Yves Congar, Henri de Lubac, Hans Küng, or Hans Urs von Balthasar. There is also a decline of the theological Lehrbuch; a sobering example is gerHard müller, KaTHOlisCHe dOgmaTiK (4th ed. 2005). Müller is now the prefect of the Congregation of Faith.

54 maTTHias JesTaedT, das mag in der THeOrie riCHTig sein… (2006).55 This was explicitly accepted in JOsePH raTzinger, einfüHrung ins CHrisTenTum 160 (3d ed. 2005).



one.56 Therefore, a vivid debate in comparative constitutional law should take place on different forms in different forms, and with an open and reflective mind about the respective traditions of the participants. Too much seems to be self-evident, and there is too little reflection on what it means when, for example, German editors present a Handbook57 or a Commentary58 and Americans a case-book.59

In a second step, this could mean for the German tradition to revive the project of a comprehensive Lehrbuch with a systematic claim.60 Obviously, this is a particularly bold approach when it comes to comparative law, as its diversity seems hard to grasp.61 But it would be wrong to react to the variety of constitutionalisms we can find today with a limited set of micro-questions and case-analyses. These play an important role, but reacting to complexity only with a fragmentation of the research unaccompanied with a radical conceptual reductionism is not at all obvious.

Openness to the conceptual is especially necessary in constitutional law with its propensity for highly abstract arguments stemming from political theory and his-tory. Once again, we need to learn from the American tradition and modify the les-son: American constitutional law has produced many theoretical, i.e. conceptual approaches. Authors such as Ackerman, Bickel, Ely, or Sunstein come to mind. But it seems important to see that these theories address very specific American problems using a general rhetoric that suggests that they can be applied as such everywhere else. One example is the debate of Bickel’s “counter-majoritarian difficulty,” which has become global, though there are rather few cases beyond the US (e.g., Israel) in which a supreme court assumed the power to review legislation without an explicit mandate—while there are many more examples of constitutional courts with an explicit constitutional mission.62 It is not the fault of American constitutional theory that it is used as something universal, but it seems only possible to make use of it by taking two steps: introducing it into a comparative framework in order to modify its conceptual basis.

A preliminary conjecture is that such a comparative contextualization would nec-essarily lead to a more holistic approach: You can only understand the problem of judicial review if you know the court system; you can only understand the court sys-tem if you understand the system of separated powers, etc. This holistic approach is exactly what the Lehrbuch addresses.

56 It seems to be a prevalent effort in current methodological discussions; however, see, e.g., Mark Tushnet, Introduction, in THe rOuTledge HandbOOK On COnsTiTuTiOnal laW (Mark Tushnet, Thomas Fleiner & Cheryl Saunders eds., 2013).

57 1–7 ius PubliCum eurOPaeum (Armin v. Bogdandy & Peter Michael Huber eds., 2009–2015).58 THe CHarTer Of THe uniTed naTiOns. a COmmenTary (Bruno Simma et al. eds., 3d ed. 2012).59 viCKi JaCKsOn & marK TusHneT, COmParaTive COnsTiTuTiOnal laW (1999); mixed editorship, yet purely

American form: nOrman dOrsen/miCHel rOsenfeld/andras saJO/susanne baer, COmParaTive COnsTiTuTiOnalism (2d ed. 2010).

60 The most interesting example of a German Lehrbuch in comparative constitutional law is 1–3 Julius HaTsCHeK, allgemeines sTaaTsreCHT auf reCHTsvergleiCHender grundlage (1909).

61 A remarkable example is reinHard zimmermann, THe laW Of ObligaTiOns (1996).62 Christoph Möllers, Why There is No Governing With Judges (Ms, on file with the author).


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4.2. The Lehrbuch in comparative constitutional law today

Is the Lehrbuch a tool that is used in current comparative constitutional law? To be sure, recent years have witnessed an increasing proliferation of literature on com-parative constitutional law, especially in the Anglo-American world, but also every-where else. Providing a comprehensive and complete account of the abundance of comparative constitutional literature seems impossible. But we will at least try to offer some insights, to map the field of ever-evolving literature. If the following account is limited to merely four countries, none of which are outside the Western hemisphere, it only shows that our endeavor here is not an empirical one. It is rather intended as a first step in opening up a conversation on forms.

The Anglo-American handbooks on comparative constitutional law are well known. Next to the classical Anglo-American “cases and materials” format,63 there are also handbooks that assemble a number of contributions by various authors on a variety of topics related to the subject of comparative constitutional law.64 Handbooks on general comparative law also routinely include chapters on compara-tive constitutional law that address underlying methodological issues.65 Some of the editors of casebooks and handbooks have also embarked on their own projects that deal with specific aspects of comparative constitutional law, and almost all of them have engaged in some form or other in a methodological discussion that revolves both around the general question of why one engages in comparative constitutional law as well as more specific questions such as the selection of cases to be compared. While the content and the methodological approaches vary across the range of available litera-ture, the format—whether a casebook or a handbook—remains strikingly consistent. Monographs on a phenomenon that one could call “general comparative constitu-tional law” are practically non-existent in the Anglo-American world.66

Turning to literature on comparative constitutional law in Europe, it is interesting to note that comprehensive and systematic accounts of comparative constitutional law are especially slim in Germany and (although less so) in France, but that there is an abundance of textbooks in Italy. This is a surprising fact for at least two reasons.

63 viCKi JaCKsOn & marK TusHneT, supra note 59; nOrman dOrsen/miCHel rOsenfeld/andras saJO/susanne baer, supra note 59.

64 THe OxfOrd HandbOOK Of COmParaTive COnsTiTuTiOnal laW (Michel Rosenfeld & András Sajó eds., 2012); COmParaTive COnsTiTuTiOnal laW (Tom Ginsburg & Rosalind Dixon eds., 2011); THe rOuTledge HandbOOK On COnsTiTuTiOnal laW, supra note 56. Interestingly, each chapter in the rOuTledge HandbOOK is co-authored, which presents a significantly higher challenge than assembling a handbook with chapters under indi-vidual authorship.

65 Günther Frankenberg, Comparative Constitutional Law, in THe Cambridge COmPaniOn TO COmParaTive laW 171 (Mauro Bussani & Ugo Mattei eds., 2012); Mark Tushnet, Comparative Constitutional Law, in THe OxfOrd HandbOOK Of COmParaTive laW 1225 (Mathias Reimann & Reinhard Zimmermann eds., 2006).

66 A rare exception, and not limited to comparative constitutional law, is elisabeTH zOller, inTrOduCTiOn TO PubliC laW: a COmParaTive sTudy (2008). Of course, this work is not technically part of the Anglo-American literature; it is the English version of elisabeTH zOller, inTrOduCTiOn au drOiT PubliC (2006) which was first published as a “Précis Dalloz,” a famous French book series designed primarily for law students. It is also noteworthy that Zoller’s approach to describing the phenomenon of “public law” is a historical one that traces the evolvement of the concept through the ages.



First, especially France, but also Germany, have a strong tradition in comparative law.67 The first international congress on comparative law was organized in 1900 by two French legal scholars, Edouard Lambert and Raymond Saleilles, both of whom went on to also influence the legal scholarship in comparative law and to establish it as a discipline. France has also known a culture of comprehensive treatises, which comes with strong systematic claims with a philosophical rooting.68 Germany has an equally strong tradition in comparative law, and one of the most widely read sys-tematic accounts of general comparative law is still German-authored Introduction to Comparative Law.69

Second, if one looks at the “legal families” that Zweigert and Kötz established as a framework for their account of comparative law, Italy and France are part of the same “family”—the Romanistic legal family.70 Because Zweigert and Kötz use the style of legal reasoning as a criterion to identify a legal family,71 one might intuitively assume that France and Italy would also share a similar style in comparative constitutional law and have a similar interest in the subject. Yet this is not the case.

In recent years, literature focused exclusively on comparative constitutional law has been rare in France. While many constitutional law scholars apply comparison as a method for specific legal questions,72 and while there are several authors who exam-ine constitutional law as part of the larger realm of public law73 or in an even larger context of general comparative law,74 there are few systematic accounts whose main subject is comparative constitutional law. This may in part be due to the French canon in which administrative law has long superseded constitutional law.75 But the interest in comparative constitutional law has increased over the past two decades or so, not least due to an increasingly tighter European integration. European integration and the quest for an underlying constitutional value system with a universal claim seems to be at the heart of some of the accounts that focus mainly on Western countries

67 For France, see elisabeTH zOller, Qu’est-ce que faire du droit constitutional comparé?, 32 drOiTs 121, 122–123 (2001).

68 Examples from comparative constitutional law are adHémar esmein, élemenTs de drOiT COnsTiTuTiOnnel fran-çais eT COmParé (6th ed. repr. 2001) (1914); raymOnd Carré de malberg, COnTribuTiOn à la THéOrie générale de l’éTaT (repr. 1969) (1920); bOris mirKine-gueTzeviTCH, les COnsTiTuTiOns eurOPéennes (1951).

69 KOnrad zWeigerT & Hein KöTz, inTrOduCTiOn TO COmParaTive laW (3d ed. transl. Tony Weir, 1998).70 KOnrad zWeigerT & Hein KöTz, einfüHrung in die reCHTsvergleiCHung (3d ed. 1996), at 73, and esp. at 118–

130. A similar grouping that puts Italy and France in the same “family” is adopted e.g. by miCHel frOmOnT, drOiT adminisTraTif des éTaTs eurOPéens 14 (2006).

71 KOnrad zWeigerT & Hein KöTz, supra note 70, at 67.72 See, e.g., Hélène Ruiz Fabri et al., Les institutions de clémence (amnistie, grâce et prescription) en droit interna-

tional et droit constitutionnel comparé, 28(1) arCHives de POliTique Criminelle 237 (2006); Bertrand Mathieu, La vie en droit constitutionnel comparé. Éléments des réflexions sur un droit incertain, 50(4) revue inTernaTiO-nale de drOiT COmParé 1031 (1998).

73 See, e.g., frOmOnT, supra note 70; JaCques ziller, adminisTraTiOns COmParées. les sysTèmes POliTiCO-adminisTraTifs de l’eurOPe des dOuze (1993).

74 miCHel frOmOnT, grands sysTèmes de drOiT éTrangers (3rd ed. 1998) is explicitly designed as a mémento, i.e. a short study guide for students and goes beyond constitutional or even public law: its aim is to provide a bird’s eye perspective on various legal systems on 141 pages.

75 In fact, mauriCe HauriOu, PréCis de drOiT adminisTraTif (11th ed. 1927) is probably known to every French law student, whereas scholars such as Esmein or Carré de Malberg get less attention.


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and compare both structural principles of constitutional law, such as the rule of law, fundamental rights, and democracy as well as institutions created by various constitu-tions.76 These works share a specific style that is largely unknown both to the German as well as to the American legal—at least the academic—sphere. Maybe best charac-terized as “essayist,” these works combine a minimalistic citation style with an easily readable language that reveals rather profound knowledge of the philosophical ante-cedents and rooting of one’s work. This French style can be traced back to the tradi-tion of lectures in French legal education, which often resulted in cours that were then published as books.77 This concept of lectures, cours de droit, is still visible throughout much of French literature, which does by no means diminish the intellectual quality of thought, but causes at least a superficial skepticism in academic circles where the amount and extent of footnotes may still be seen as an indicator for academic rigor.

However, methodological unease and challenges to the universalist ambition of the aforementioned books are also on the rise in France. One answer is, once again, the handbook, known from the Anglo-American world.78 Another answer is to take on the epistemological challenge, but without abandoning the French style. A prominent case is Marie-Claire Ponthoreau’s recent work Droit(s) constitutionnel(s) comparé(s).79 The title already indicates the author’s ambiguity about the question whether com-parative constitutional law ought to, or even could, be a distinct discipline. Ponthoreau devotes a significant portion of her work to assessing the current state of comparative constitutional law and its various methodological approaches. This assessment is in itself part of Ponthoreau’s venture to establish a “pluralist comparativism,” one that attempts to describe the pluralist world of constitutional law and its discursive ele-ments, but while accepting that any such description is inevitably subjective.80 Putting pluralist thoughts at the center, Ponthoreau significantly departs from the traditional French grands systèmes approach as far as the content and method are concerned. Interestingly, the same cannot be said for the outline. It comes as no surprise that one reviewer has characterized the book as one where an experienced teacher of compara-tive law provides an insight into her own work.81 When it comes to comprehensive treatises in French literature, the cours de droit tradition remains visible even if the content and method are radically reversed.

76 Hélène ruiz-fabri & COnsTanCe greWe, drOiTs COnsTiTuTiOnnels eurOPéens (1995); frOmOnT, supra note 70, at 86–88, 110.

77 In addition to esmein’s seminal work (supra note 68), see on comparative constitutional law the many cours de droit constitutionnel comparé from the first half of the twentieth century: e.g., the series of lectures by gilberT gidel, drOiT COnsTiTuTiOnnel COmParé (1931–1939); marCel PrélOT, COurs de drOiT COnsTiTuTiOnnel COmParé (1949–1950); CHarles eisenmann, COurs de drOiT COnsTiTuTiOnnel COmParé (1951); geOrges burdeau, drOiT COnsTiTuTiOnnel COmParé (1953).

78 rePenser le COnsTiTuTiOnnalisme à l’âge de la mOndialisaTiOn eT de la PrivaTisaTiOn (Hélène Ruiz-Fabri & Michel Rosenfeld eds., 2011), with co-authored and individually authored book chapters, but without an explicit comparative aim.

79 marie-Claire POnTHOreau, drOiT(s) COnsTiTuTiOnnel(s) COmParé(s) (2010).80 Id., at 203. Ponthoreau labels this subjective element as “perspectivism.”81 Céline Roynier, Droit(s) constitutionnel(s) comparé(s)—Book review, 5 Jus POliTiCum (2010), http://www.

juspoliticum.com/IMG/pdf/JP5_Roynier_corr01-3.pdf (last accessed 4 July 2014).


http://www.juspoliticum.com/IMG/pdf/JP5_Roynier_corr01-3.pdf

http://www.juspoliticum.com/IMG/pdf/JP5_Roynier_corr01-3.pdf


In contrast to the French legal literature, where Ponthoreau’s book remains the only book focusing exclusively on comparative constitutional law, Italian academia presents several textbooks that explicitly and exclusively present comparative con-stitutional law82 and two forms seem to be prevalent. Less frequent is the form of a voluminous manual edited by multiple professors, similar to the Anglo-American handbook. The work by Carrozza, Di Giovine, and Ferrari may serve as an example. It assembles no fewer than 23 authors each of whom presents one or several chapters on a specific country or a group of countries, with a total of 13 “democratic” legal families and five “uncertain” or “recent” democracies. As several other handbooks, this is a collection of single contributions by individual authors that are loosely bound together by a common aim of contributing not only to specific solutions to constitu-tional cases, but also to a better understanding of a global phenomenon.83 In that, every contribution follows a rather uniform structure: it briefly contextualizes a given constitution in its history and then goes on to examine various institutes provided by the text of the constitution. The main frame of reference is always the state, a prem-ise that is never challenged, not even in the last part of the book which assembles a number of syntheses, each presenting the “big picture” on forms of government and organization of the state (federalism and regionalism, electoral systems and organiza-tion of the judiciary, to name a few).

The other form of legal literature used in Italy is the monograph; and de Vergottini’s work, now in its eighth edition and widely read not only in Italy, but also in Spain, Mexico, and Argentina,84 is probably the most prominent example of the genre. It fig-ures as a required reading on the syllabi of many a class on comparative constitu-tional law (a subject which is part of the curriculum of all the larger law programs in Italy) and is, in essence, a Lehrbuch in form. Comparative constitutional law’s main aim, according to de Vergottini, is generating knowledge; but, he emphasizes, com-parative constitutional law also pursues a number of other objectives: it serves as an instrument to better understand one’s own constitutional arrangements and norms, informs the creation of new norms, serves as a means for the judiciary to interpret its own constitutional law, as well as contributes to a harmonization of norms.85 In this vein, de Vergottini is a classical comparatist: Zweigert and Kötz, for example, present exactly those aims as the aims of comparative law in general,86 and the well-known dichotomy of macro- and micro-comparison as the two main methodological strands is invoked as well.87

82 giusePPe de vergOTTini, diriTTO COsTiTuziOnale COmParaTO (8th ed. 2011); diriTTO COsTiTuziOnale COmParaTO (Paolo Carrozza, Alfonso Di Giovine & Giuseppe F. Ferrari eds., 2009); diriTTO PubbliCO COmParaTO (Giuseppe Morbidelli et al. eds., 3d ed. 2009); PaOlO ridOla, diriTTO COmParaTO e diriTTO COsTiTuziOnale eurOPeO (2010); silviO gambinO, diriTTO COsTiTuziOnale COmParaTO ed eurOPeO (2004); giOvanni bOgneTTi, diriTTO COsTiTuziOnale COmParaTO (2011).

83 diriTTO COsTiTuziOnale COmParaTO 17 (Paolo Carrozza, Alfonso Di Giovine & Giuseppe F. Ferrari eds., 2009).84 Christian Starck, Giuseppe de Vergottini: Diritto Costituzionale Comparato, JurisTenzeiTung 510 (2012).85 giusePPe de vergOTTini, diriTTO COsTiTuziOnale COmParaTO 6–8 (7th ed. 2007).86 zWeigerT & KöTz, supra note 70, at 14–31.87 de vergOTTini, supra note 85, at 37–38.


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While the quantity of works addressing comparative constitutional law surely var-ies, France and Italy share one important feature: those who engage in the endeavor of comparative constitutional law view constitutional law conceptually and draw on general comparative law methods in order to grasp the phenomenon that is constitu-tional law. France and Italy also share another interesting point. In both countries, it appears that a historical and sociological rooting of constitutional law is considered indispensable, but that does by no means undermine the quality of constitutional law as law.

In contemporary Germany, the handbook Ius Publicum Europaeum is the only syn-thetic piece of constitutional comparison.88 It is highly informative and dense, and also full of theoretical references without representing one specific methodological frame-work. Though references to other legal orders, especially to the North-American, are very common in monographs and articles, there is neither a systematic book on the topic nor are there many authors that are known as comparative constitutionalists. Some of the more inspiring contributions from German authors are better known abroad.89 The dominant German idea of comparative constitutionalism seems still to lie in the attempt to export arguments from the Grundgesetz or the jurisprudence of the constitutional court.90 To be sure, this is no illegitimate project, but it is not com-parative in its approach.

This short overview yields two results that are important for our venture here. First, there is a growing interest in constitutional law as the subject of comparative law, even if Germany and France have a surprisingly low number of works that focus exclusively on the subject as such. Second, there is a growing unease in pursuing comparative law with the functionalist agenda of arriving at some sort of concrete solution to a specific case and, beyond that, of unmasking underlying constitutional legal principles in a cosmopolitan project with a universal aim.

4.3. The scientific challenge and a theoretical answer

The legal realist project is still alive and well, and it has recently been used to define a research agenda for comparative constitutionalism.91 Ran Hirschl claims in his editorial in I.CON that the fact that constitutions do not operate in a vacuum but in a socio-eco-nomic context has been “often overlooked.” Instead, constitutional law is overly focused on “questions of jurisprudence.” This is, Hirschl adds, a methodological loss compared to other less court-centered episodes in comparative constitutionalism, in particular at the end of the nineteenth century.92 While the twentieth century saw a large volume of

88 bernd Wieser, vergleiCHendes verfassungsreCHT (2005) is a mere collection of constitutional institutions from an Austrian perspective.

89 An important example is Günther Frankenberg, Critical Comparisons, 26 Harv. J. inT. l. 438 (1985). See also Frankenberg, supra note 65.

90 The two most relevant authors are Dieter Grimm and Peter Häberle.91 Ran Hirschl, Editorial: From Comparative Constitutional Law to Comparative Constitutional Studies, 11(1)

inT’l J. COnsT. l. 1 (2013). COmParaTive COnsTiTuTiOnal design (Tom Ginsburg ed., 2012) takes up Hirschl’s idea and explicitly places this volume in a tradition of comparative constitutional studies.

92 Hirschl, supra note 91, at 3–4.



path-breaking research projects in constitutional studies carried out by social scientists, lawyers never took up these achievements. Therefore, Hirschl argues, it is now time to “incorporate” social sciences into the comparative study of the constitution. Comparative constitutional law should adhere to the standards of “causal inference, arguably the ulti-mate goal of scientific inquiry.”93 After having recognized comparative constitutional law’s crucial problems, namely the dependence of judicial law-making on political influ-ence, the uncertainty of the “real effects” of legal institutions, and the “fuzziness” of the comparative method, Hirschl advocates for a cross-disciplinary approach that he labels “comparative constitutional studies” (as opposed to law).94 These arguments are any-thing but new. They rehearse the research program of American legal realism even after one hundred successful years in their quest for reality behind the legal form.

There is no doubt that comparative constitutional law has to entertain a serious academic conversation with other disciplines. But the decisive point, a point that might increasingly separate American-style jurisprudence from the rest of the world, is that this conversation must not be confused with any fundamentalism of the empir-ical that has been criticized in Section 1 of this article. Law is a fuzzy method of discur-sive exchange,95 but this fuzziness can be equated neither with intellectual sloppiness nor with a lack of realism. Normative concepts claim a reality of their own, and it is far from clear how this reality could be reduced to empirical quantitative research. In a research context that is, above all, characterized by specialization and division of labor, the hope for comprehensive studies seems to be unwarranted. What would be the common denominator of these studies? As the tide of fashionable interdisciplin-arity seems to ebb, Hirschl’s references to late-nineteenth-century research seem to be no accident. They remind us of the old dream of the all-comprehensive German Staatslehre that was able to look at the political entity from all methodological angles at the same time.96 This dream was shattered at the diversity of methods, none of which, for reasons of their own, could be reduced to a single methodological approach.97

Comparative constitutionalism has to stress this point in a particular manner as the belief that norms can be founded on facts that can be ascertained by a scientific research agenda is today much more prominent in the US than in other legal cultures. But if there is something like a methodology or even a mere style of legal reasoning,98 then it fails to fit this comparative research program.

93 Ran Hirschl, On the Blurred Methodological Matrix in Comparative Constitutional law, in THe migraTiOn Of COnsTiTuTiOnal ideas 39, 65 (S. Choudry ed., 2006).

94 Hirschl, supra note 91, at 7–9, 11.95 This fuzziness that has a long intellectual history as a form of soft rationality, as Greek “phronesis” or

as Roman “prudential.” One seminal, yet sidelined contribution to philosophy with a special interest in the rationality of jurisprudence is giambaTTisTa viCO, THe neW sCienCe (Ithaca: Cornell University Press, 1984) (3d ed. 1744).

96 geOrg JellineK, allgemeine sTaaTsleHre (1900); for a critique of this research program, see CHrisTOPH möllers, sTaaT als argumenT 18–23 (2d ed. 2011).

97 Though some still seem to believe it: Wieser, supra note 88, at 23 talks about super-national systematics that are provided by the “Allgemeine Staatslehre.”

98 See, e.g., miCHel O. lasser, JudiCial deliberaTiOns: a COmParaTive analysis Of JudiCial TransParenCy and legiTimaCy (2004).


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This uncertainty in the methodological approach finds its expression—at least to a certain extent—in the recent proliferation of handbooks. Providing a forum for a wide array of authors also means providing a forum for a wide array of method-ological approaches.99 Casebooks, on the other hand, have to opt for a methodological approach in order to justify their choice of cases. Ruti Teitel has convincingly shown that the approach adopted by the casebook by Dorsen et al. is in fact a functionalist approach that inscribes itself in a tradition of comparative law methodology seeking some form of unequivocal answer to a specific problem in constitutional law, while the choice of cases and materials by Jackson and Tushnet stems from a critical legal stud-ies perspective.100 Teitel then proceeds to evaluate both approaches. The functionalist approach, which sees comparative law as a problem-solving tool and develops highly abstract constitution-making prototypes, lacks awareness of the increasing complex-ity of specific political constellations, and it remains unclear how those prototypes can actually guide contemporary constitutional projects in post-conflict countries. But the critical legal studies approach might overemphasize context, making a specific legal answer impossible.101 In Teitel’s own words, “[n]eofunctionalism helps to under-stand the affinities in comparative legal phenomena, while CLS helps to understand the differences.” 102 Both approaches therefore have a certain amount of legitimacy, but none is entirely satisfactory. Teitel posits a “dialogical” approach against the func-tionalist and the CLS program: comparativism would then be justified on the grounds of an ever-evolving transnational constitutional regime centered on processes of judicial review. This take on comparative constitutional law, which would focus on comparing the processes of judicial interpretation, connects to the debate on trans-national legal processes103 and dialogue between judges,104 but ultimately does not give any answer to the epistemological problem of comparative constitutional law. It merely limits it to a specific aspect of what is considered to be the scope of comparative constitutional law.

What seems missing in the debate on comparative constitutional law, on methodol-ogy and the empirical vs. the normative approach, is an analysis of the applications of comparative constitutional law, if we accept the epistemological challenge and con-sider it to be a part of legal science in its own right. Some applications seem obvious: the findings of comparative constitutional law can be used in adjudication; they can be used in transitional justice processes, for positive norm setting; they can be used for

99 In editing the rOuTledge HandbOOK, supra note 56, Tushnet explicitly sought to “avoid making method-ological choices to as great an extent as we could” (Introduction, id., at 28).

100 Ruti Teitel, Comparative Constitutional Law in a Global Age, 117(8) Harv. l. rev. 2570 (2004). See also POnTHOreau, supra note 79, at 56–58, describing how each casebook favors certain topics over others without making its methodological approach explicit.

101 Teitel, supra note 100, at 2582.102 Id., at 2583.103 Harold H. Koh, Transnational Legal Process, 75 neb. l. rev. 182, 181–207 (1996). See also Harold H. Koh,

Why Do Nations Obey International Law?, 106(8) Y. L. J. 2599 (1997).104 anne-marie slaugHTer, a neW WOrld Order, ch. 2 (2004).



the reform of well-established constitutional traditions.105 Those are, in a way, “tradi-tional” applications of comparative constitutional law.

But comparative constitutionalism is above all an instrument for describing and understanding constitutionalism; it is the empirical complement to constitutional theory. Comparative constitutional law is to inform both horizontal and vertical coor-dination of a variety of legal regimes.106 For an approach that tries to reassess the value of concepts and the tradition of the Lehrbuch, comparative constitutional law has to be carried out in a holistic fashion based on a theoretical framework. As con-cepts only make sense if there is more than one case to which they can be applied or instantiated, constitutional theory only makes sense if it is tested and proven within the context of a variety of constitutions. To devise a constitutional theory and apply it to only one case seems like a common but somehow fruitless project, like building an aesthetic theory on a single piece of art. But if constitutional theory is the field in which a global intellectual discourse on the relation between law and politics will be led, then it seems necessary to debate concepts and examples, models of legitimacy and concrete cases, legal arguments and political institutions. Such theories have to make explicit what remains mostly implicit in comparative constitutional law: choices of topics and legal orders that are addressed. By and of itself, a theory will not be able to solve the problem of selection in any objective way, because this problem cannot be solved by any single theory, but can only be addressed through contestation among different theories. Again, it is the problem of the great tradition of American constitu-tional theory from Madison to Sunstein not to draw a distinction between specifically American problems and their framework in a general model of constitutionalism.107 The question of what is specific and what is general can only be answered by a com-parison, and this comparison has to be oriented by some explicit normative framework addressing the relation between law and politics.

If this road is followed, biases remain unavoidable. But it is dubious whether we should try to work without any bias at all,108 or rather opt to make those biases explicit. Some kind of “Westernism” seems like a necessary element of constitutional studies, at least if conducted in a Western academic environment and influenced by a Western tradition. The trick must be to acknowledge the Westernness of constitution-alism and to translate it into other contexts. The solution cannot be to deny or avoid one’s own “Western” tradition,109 which may lead to a dual conclusion with regard to the presentation of comparative constitutional law: not only is comparative consti-tutional law in need of a theoretical framework, but the framework needs to provide for a holistic approach. This does not exclude pluralism. In fact, it must be reiterated that a single theoretical approach that would remain unchallenged won’t do. Instead, there is a need for a variety of theories, and holistic approaches do not exclude that we

105 France’s recent move towards more extensive review power for the Conseil Constitutionnel seems to be largely informed by foreign constitutional law.

106 This is also Teitel’s assessment, supra note 100, at 2587.107 Similarly POnTHOreau, supra note 79, at 55–58.108 Tushnet, supra note 99.109 As developed for capitalism by diPesH CHaKrabarTHy, PrOvinCializing eurOPe (2007).


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can accept such a variety. Koskenniemi’s plea for a culture of formalism110 is also one for pluralism: if a specific claim presumes universal validity, it may be recognized as legitimate at least insofar as it claims universality.111

4.4. An example

Let us conclude with an example. There may be many reasons for the development of independent administrative agencies in a constitutional system: political devel-opments, social demands for regulation, or the innate complexity of the regulated affairs, as is often claimed though rarely proven in constitutional theory.112 But one reason among many may also be found in the structure of institutional legitimacy in a given constitutional system. In systems with a dual political legitimacy, such as US presidentialism, the political competition between Congress and the president may lead to a certain autonomy of administrative agencies, whereas systems with a monist legitimacy, including classical parliamentary governments, have a more plausible case for executive hierarchy. But then again, this case for hierarchy may have different effects in federal systems than it would in centralized systems, because in the latter there is a need for alternative forms of decentralization that may favor independent agencies.113 The point here, and the core of the pragmatist intuition presented above, is that the structure of constitutional legitimacy does not only serve as a normative category, a model of how the institutions should work, but also as way of explaining how constitutional structures actually work and develop at present. These kinds of observations can only be made with reference to a conceptual background within the context of a comprehensive presentation of constitutional law that is able to connect different questions.

One important implication that ties the normative to the descriptive lies in the answers to the question of what we can expect from constitutional institutions. Much of the contemporary discourse on constitutional institutions presents a history of rise and fall without much of a historical background.114 One possible result of a more conceptual approach might lie in a more nuanced definition of what constitutional institutions do and should be able to achieve. The disappointment with regard to the deliberative quality of parliaments, a perpetual leitmotif since the late eighteenth cen-tury, might partly stem from a mistaken or unreflected concept of parliamentarism.

110 Supra, Section 2.4.111 KOsKenniemi, supra note 28, at 507.112 The use of “complexity” in a rather incomplex fashion and unconnected with empirical social research

has been a characteristic of the literature of independent agencies since the New Deal. For two more examples publications: franK vilberT, THe rise Of THe uneleCTed (2007); eOin CarOlan, THe neW seParaTiOn Of POWers (2009), but it seems hard to historically assess social complexity and to relate to different govern-mental institutions. The result, virtually unchanged since the New Deal, and like a self-fulfilling prophecy is then the historical necessity of a technocratic executive branch.

113 Christoph Möllers, Politik und Verwaltung, in ius PubliCum eurOPaeum v, § 94 (Armin von Bogdandy & Peter Michael Huber eds., 2013).

114 References for the question of separation of powers are in CHrisTOPH möllers, THe THree branCHes 8–10 (2013).



The hypothesis of the rising power of the executive, another staple idea that is more than a century old, may have to do with a definition of “power” that is closer to execu-tive action than to legislative programming of action. To be sure, this means neither that institutions do not change—the judiciary certainly has changed in a dramatic fashion, and there is no doubt that political sciences had to remind lawyers of that fact—nor that more or less normatively desirable moments may exist in the life of a constitutional polity. Still, this means we should try to avoid an intellectual scheme in which normative evaluations are explicitly pushed aside yet implicitly endorsed by means of historical or other pseudo-factual narratives. The neglect of conceptual thinking seems to lead to the unjustified connections of detailed observations and large-scale narratives. This is the problematic side of the legal realist tradition.

5. ConclusionIn the current debate on comparative constitutional law, little is certain: there is an ongoing discussion on whether comparative constitutional law has an epistemologi-cal quality or whether it should rather be viewed as a method.115 There is not one, but multiple competing goals that comparative constitutional law, be it as a method or as a discipline of its own right, could pursue. While the demand for comparison in constitutional law seems to be growing, the very technique of comparison has been unsettled by postmodern critique. This uncertainty has led many to abandon the legal project in the sense that law is seen as being exclusively determined by outside factors.

Against this realist critique, legal concepts can serve as tools that capture some of the inherently legal quality of constitutional law in a way that allows for a compara-tive research agenda and might even assert comparative constitutional law as a dis-cipline in its own right. This does not mean that one ought to naïvely apply concepts that implicitly advocate this or that goal. Rather, in developing new concepts to cap-ture the phenomenon of what constitutional law is and how different constitutional legal regimes can be compared with one another, the inherent uncertainties in this endeavor ought to be made explicit. This includes a critical self-assessment of one’s own legal tradition, which does not only show in the content, but also in the form of writing. If pluralism is one main characterizing feature of today’s legal discipline, then we ought to embrace it by developing competing accounts of this discipline. For contestation, far from being a threat to the legal system as such, is indispensable for its progress and constant evolvement.

115 POnTHOreau, supra note 79, ch. 3; Frankenberg, supra note 65, at 174–177.


towards a new conceptualism in comparative constitutional law, or

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