"The Comparative Project"-- a synopsis of presentations from panel one of the ISCP's inaugural conference

The Comparative Project: A Synopsis of Presentations from Panel One of the ISCP's inaugural conference, Constitutional Conflicts and the Judicial Role in Comparative Perspective

*Prepared by Orly Rachmilovitz

William Ewald (University of Pennsylvania School of Law)

This is a massive topic, with many perspectives. I’d like to focus on the perspective of foreign students, specifically in LL.M. programs, coming to study law in the United States. Two main questions frame the discussion – first, what do they need to learn in order to understand American law, and how they can learn this?

As for the first question of what foreign students need to know about American law, they must absorb a lot of information, essentially what a first year law student learns. However, for foreign students, all of this material must be condensed, which doesn’t always work. Fortunately, they already know a lot, they have a broad and conceptual understanding of how the law works. So the focus shifts to general aspects of American culture and legal culture. U.S. legal culture – how Americans make assumptions about the law, how to read a case, how the constitutional system works, but mainly the politicization of American law – is very confusing to many, as well as that there is often not one right answer.

Regarding methodology of teaching these courses for foreign students, reading cases or outlines reinforces the idea that there are settled questions. Casebooks are often designed for American students. Professor Tushnet has authored a review of American constitutional history. It clarifies controversy and debate around opinions in a way that seemed to help students start getting the politics, positioning and focus less on answers. It also helps flesh out American history and cultural pre-suppositions.

Given the extent of difficulty in instruction of how other systems work in the law school context, what are the implications for courts? What happens when courts look at several other systems for the purpose of writing opinions? It seems there would be a problem, as no court can really be a master of all systems.

Amnon Reichman (University of Haifa Faculty of Law)

The work of comparative law is very challenging. Comparativists have moved away from “stamp collecting” and comparing different doctrines. Instead, a dynamic process has emerged – the migration or diffusion of ideas and transplantation of those ideas. We see more cross-influences; a more developed and advanced comparative constitutional law.

It has now become a form of conversation. To understand this conversation we need to look at theories of communication. The assumption is that there is enough common language and understanding but there are limits to shared language and culture.

The law establishes normative, cultural frameworks. In comparative law this is a challenge, as narratives collide and can undermine the structure of power. Therefore these structures might not want to adopt foreign narratives, which invite a critique of their own system, within and without. When you open yourself up to translation, you also open yourself up to critique of the methodology you employ and of the substance of your decisions. There are three ways decisions may use comparative law:

1. Comparative law as justification.
2. Use of the research in other jurisdictions to help reach a decision.
3. Use of scholars’ empirical, macro-analysis of how courts behave (for instance, what does “proportionality” mean in different jurisdictions.)

There is still a need to bridge empirical macro- and micro- approaches.

Legal geography guides how we use comparative law. The way we teach law is that we first learn our own system, then learn comparative law. We also develop a shared sense of identity that guides trans-nationality in protecting human rights.

We still have yet to develop a good understanding of courts’ institutional capital, which signals to them how far they can or should go. What is the zone of tolerance from neighboring players like the legislature or market? We still don’t know how to evaluate this.

Another challenge is the framework narratives – the institutional capital of the Israeli Court because it employed the narrative that this is the bastion of the citizen harmed by the government. It purported to be about the “little guy” being protected from the government. Now the Court is more about group rights, minority rights and less about the individual. Today the Court tries to mitigate and defer to the government. To an extent, both the Court and the government no longer serve the citizen. Comparing the Israeli experience with similar changes in U.S. law and reflecting on its constitutional law is a worthwhile project.

Michel Rosenfeld (Benjamin N. Cardozo School of Law)

None of the cases on judicial review can be understood within the text of the Constitution.

1. Marbury v Madison: the U.S. Constitution does not give the Supreme Court the ultimate authority to interpret the Constitution.
2. Mizrahi: any constitutional democracy needs judicial review and a court to do that judicial review. The Court was being activist. Barak is aware of this and fends off criticism by saying the opinion reflects the deepest position of society. But people in Israel cannot agree on many fundamental issues, as evidenced by the lack of a written constitution. It seems like Barak has an abstract argument for judicial review.
3. In South Africa, there were negotiations between the apartheid government and Mandela, representing the African National Congress. The negotiation led to a constitution being submitted to the Constitutional Court. The Court had constitutional principles in mind and decided the Interim Constitution could not be a constitution. That document was then revised according to the Court’s decision and at the end of the process ultimately became the final Constitution. 
4. In Canada in the context of the secession, the Court decided there must be respect for the Constitution and its principles in secession. Then the Court says nothing about secession.

A few general observations:

It is important to realize what level of abstraction we should take – context, identity – to be thoughtful about “cherry picking” comparisons.

We should consider the value of comparison. There is a distinction between participants (judges) and the audience (scholars). Some judges use comparison strategically, namely to gain legitimacy for opinions. Scholars usually don’t. The role of the scholar is to debunk. But the strategic use of law is not limited to foreign materials.

There are three basic positions in constitutional law, reflected by decisions from the European Court of Justice, which is required to do comparative analysis, and the European Court of Human Rights, which has incentives in place for incorporating comparative law. These positions are:

1. Basically all rights are the same and converge.
2. The questions are the same but answers are different.
3. Questions and answers are different and comparative law is used to colonize and hegemonize.

Adam Shinar (Radzyner School of Law, Interdisciplinary Center, Herzliya)

Why compare in the first place? How should we compare? Why is comparison an interesting question in law, when, in other disciplines and professions, it seems obvious? The problem is that it reveals the precarious nature of law – there’s a claim of authority. Second, the reason for following the law may be morally questionable, so comparison heightens the tension between authority and autonomy. Comparative law undermines authority. In order for law to appear legitimate, it needs to assert its individual authority.

So how to compare? First is selectivity, second is accuracy. How do you get the law right? And how do courts produce this information? They rely on people in these countries to explain, to translate. But this process is mediated by go-betweens. So we need to get to primary sources. Problems include that few people speak Hebrew and that the Court produces many opinions and thus engages in selective translating. So a gap has developed between what the Court puts out there and what the Court is really doing. Courts are active participants in constructing their own image.

The separation barrier/wall cases can be used as a case study. The Court decided about 150 cases challenging the wall, but only four have been translated (here, here, here, and here). This is an extremely important and legally substantial issue – why only four cases? One can cite limited resources, that those are the cases judges believe to be important, but also those are the only ones where challenges to the wall were successful. All the other cases are where the challenges to the wall failed.

Are law-producing institutions constructing the image and producing information that makes comparative law more challenging? Do we not have the full picture? On the other hand, the gap between the real and the ideal might provide feedback and mirror back to courts, motivating them toward better decision-making.