The Possibilities of Comparative Constitutional Law

Comparative Constitutional Law 1227 learning from our "offspring."But precisely how can we go about learning?Scholars in the field of general comparative law have paid a great deal of attention to similar questions.7 Some of the best work in the field suggests skepticism about any direct "borrowing" of solutions developed in one system to resolve problems in another!One version of the difficulty is this: Comparative study is sometimes said to allow a person embedded in one system to gain some distance from it.9 Having become intellectually estranged from that system, one can then see that seemingly unchangeable arrangements actually might be altered without substantial loss and sometimes with substantial gain.10 Familiar arrangements seem necessary to us, but comparative study demonstrates that they might be false necessities.And yet the estrangement, the sense that particular arrangements might indeed be false necessities, could be misleading.Some think that comparative study is worth little if it consists of yanking something that seems useful out of one system in which it is embedded and inserting it into another."Put another way, we might begin by believing that certain arrangements are necessary, then have that belief displaced by comparative study into thinking them false necessities, only to learn, on deeper relevance to broader issues of constitutional theory is Bruce Ackerman, The Rise of World Constitutionalism, 83 VA.L. REV.771 (1997), which notes, with the author's typical exuberance, that "the global transformation has not yet had the slightest impact on American constitutional thought."Id. at 772.Much here turns on the definition of "American constitutional thought."See COMPARATIVE CONSTITUTIONAL FEDERALISM: EUROPE AND AMERICA (Mark Tushnet ed., 1990) (suggesting the possibility of an overstatement); see also GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW at xxxiii (3d ed.1996) (noting the effort in a widely used casebook "to introduce readers to some comparative materials").7. The analytic framework developed here is not novel in the study of comparative law generally, nor do I contend that the three analytic methods I describe exhaust the possibilities.My sense of the literature in general comparative law, however, is that scholars tend to argue that one of the analytic methods is superior to the others, in contrast to my more eclectic approach.For a critique of comparative law scholarship along these lines, see Riles, supra note 4.8. For a summary observation, see J.H.H. Weiler & Joel P. Trachtman, European Constitutionalism and Its Discontents, 17 Nw.J. INT'L L. & BUs.354, 355 (1996-1997) ("The dangers of 'borrowing' from one legal system to another are famous: the law of any polity is a construct embedded in a specific social and political culture and its transmutation to other polities is not easily achieved.").The most influential analysis of the existence, advantages, and disadvantages of "borrowing" as a general legal phenomenon is ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (2d ed.1993).For a careful analysis of the logic of claims about the possibilities of successful borrowings, see William Ewald, Comparative Jurisprudence (11): The Logic of Legal Transplants, 43 AM.J. COMP.L. 489 (1995).9. See, e.g., Balkin & Levinson, supra note 6, at 1005 (asserting that the purpose of comparative study is to "make the object.. .'strange' to us").10. See, e.g., Waldron, supra note 6, at 527 (arguing that comparative study can identify "which bright ideas have proven resilient under real life conditions and which have proven impracticable" ).11. See, e.g., Daniel H. Foote, The Roles of Comparative Law: Inaugural Lecture for the Dan Fenno Henderson Professorship for East Asian Legal Studies, 73 WASH.L. REV. 25, 36 (1998) ("Just as it is dangerous for us to assume that U.S. standards will apply in other societies in the same way that they do in ours, so too is it risky, without first carefully considering other aspects of U.S. society that may affect the equation, to counsel the United States to adopt an approach that works well elsewhere.").