Table of Contents

Rights-Based Constitutional Review

Rights-Based Constitutional Review

Constitutional Courts in a Changing Landscape

Studies in Comparative Law and Legal Culture series

Edited by John Bell and Marie-Luce Paris

Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review. Providing structured analyses the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.

Chapter 11: Comparative law and fundamental rights

John Bell

Subjects: law - academic, comparative law, constitutional and administrative law


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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