Constitutional Courts in a Changing Landscape
Studies in Comparative Law and Legal Culture series
Edited by John Bell and Marie-Luce Paris
Chapter 11: Comparative law and fundamental rights
In Chapter 11 (‘Comparative law and fundamental Rrghts’), Bell offers a critical view of the themes developed in the collection. He agrees with Gradbaum’s argument that there is a degree of convergence between the legal systems studied in that they all tend towards ‘a common enterprise of constitutional liberalism which makes use of the institution of rights to advance democracy’. However, he also acknowledges divergences given the differences in institutional mechanisms—primarily of judicial review of legislation—and rights protected. Bell suggests that this ‘tension between general movements of ideas and values and local issues, which permeates the comparison of different systems of public law’, has to be seen in two perspectives: the institutional and processual one, on the one hand, and the normative one, on the other hand. The former focuses on state officials who implement rights. The latter perspective revolves around the constitution viewed as ‘a work in progress’ document. The supreme norm makes each constitutional legal order distinct from one another. This distinctiveness, argues Bell, is also the result of the place of the constitution within a wider conversation which seeks to embrace the constitution’s specific past, its current specific local social needs as well as its connection with external standards such as supranational instruments and courts protecting fundamental rights.
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