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Adrienne Stone General Editor, Comparative Constitutional Studies

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Lael K. Weis Guest Editor, Volume 1(1) Constitutional Identities

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Stijn Smet Guest Editor, Volume 1(1) Constitutional Identities

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This launch issue of Comparative Constitutional Studies brings to life an idea germinated in conversations over many years between its editors and among colleagues in the global community of scholars of constitutional law. Adrienne Stone and Lulu Weis are fortunate to be scholars working at the Centre for Comparative Constitutional Studies at Melbourne Law School, on the lands of the Wurundjeri people. Stijn Smet joined the Centre as a post-doctoral fellow in 2017 and 2018. The Centre, which inspired the name of this journal, was founded in 1988 by Professor Cheryl Saunders,1 in a supremely prescient act, just predating the explosion in the field that began in the next decade.

Viewing the world from the heart of the geographic south, we could see a dynamic and multi-disciplinary field that needed additional outlets for top-quality work, greater attention to discursive, interpretive, and analytical research methods and to less-studied regions and jurisdictions. Our journal aims to fill these gaps, although we realize this ambitious goal can be approached but slowly and with humility. Our cover image of the black swan (cygnus atratus), native to Australia and once presumed by Europeans not to exist,2 symbolizes this perspective and our ambition.

We launch the journal with two special issues addressing fundamental issues in comparative constitutional studies: constitutional identities and methodologies. This first special issue on constitutional identities explores the variety of challenges that different understandings of constitutionalism pose for the liberal, democratic, statist model as the core conception of what a constitution is and does. It has proved a topic peculiarly adapted to the launch of this journal, providing a focal point to revisit key ideas about constitutionalism and to explore their significance in varied contexts.

Gary Jacobsohn’s work has been seminal in this field, and we are honoured to publish his latest contribution on the theme. Elsewhere he has developed the idea that a constitution acquires an identity through engagement with a country’s past and its aspirations for the future. But he reminds us in this contribution that ‘constitutional identity exists neither as a discrete object of invention, nor as a heavily encrusted essence embedded in a society’s culture, requiring only to be discovered.’3 Rather identity is ‘disharmonic’: that is, formation of a constitutional identity occurs gradually, in the context of disputation and through interactions among social, legal and political actors.4

Jacobsohn’s framing remains foundational to understanding the intricacies of constitutional identity; and among the contributions to this volume are those that reveal the complexities of the idea in understudied contexts. Berihun Gebeye’s contribution on African constitutional identity examines the idea within the multi-state context of the African continent. The article develops a multi-level concept of identity – Pan-African, national, and subnational – and explores the relationships between them. Ngoc Son Bui’s contribution on the identity of the Chinese Constitution offers new perspectives on constitutional identity as well, by identifying three disharmonic challenges within Chinese constitutionalism: internally between its dominant socialist character, on the one hand, and liberal, universal and Confucian elements, on the other; externally between socialist commitments and social reality; and ‘normatively’ between socialist and generic constitutional identity. Turning to a rather different context, Elisa Arcioni identifies competing conceptions of the ‘the people’ within Australian constitutionalism as that polity continues its ongoing process of contestation and reconciliation with the claims and status of its First Peoples.

Beyond constitutional theory, the concept of ‘constitutional identity’ has also been a striking feature of judicial doctrine. It is the conceptual foundation for the idea of a ‘basic structure’, the fundamental and unamendable element of a constitutional order, which following its recognition by the Supreme Court of India, has given rise to a global practice of judicial review of constitutional amendments. This practice forms the centrepiece of a contribution from Duncan Okubasu and Yaniv Roznai and who juxtapose key developments in Israel and Kenya. In the context of the dramatic recent experiences in these two jurisdictions with radical constitutional reform, Okubasu and Roznai defend judicial intervention as offering the potential to conserve constitutionalism in the face of a temporary political consensus that would otherwise undermine core features of the constitutional order.

Constitutional identity has also formed the basis for doctrinal innovations that allowed domestic courts in Europe to resist aspects of the European legal order. This is exemplified by the Lisbon Case of the Bundesverfassungsgericht,5 and by a second line of authority arising from the interpretation by the Treaty of the Europe Union’s provision for the Union to respect the ‘national identities’ of member states ‘inherent in their fundamental structures, political and constitutional’.6

But judicial interventions to protect constitutional identity have also troubled constitutional scholars, giving rise to a large literature sceptical of the value of constitutional identity and warning against its unintended consequences and even its dangers. Two contributions to this volume take that scepticism in previously unexplored directions. Helle Krunke focusses on the fact that courts are usually regarded as the authoritative expositors of constitutional identity within the European constitutional order. For this reason, constitutional orders with a strong tradition of constitutional review by courts are better placed to assert their constitutional identity. In the context of the European Union, the Nordic states – where courts do not dominate the determination of constitutional meaning – have therefore been at a disadvantage, which in turns risks systemic inequality among EU members. The irony of course is that political constitutionalism is simultaneously a core feature of the constitutional identity of these states and an obstacle to its recognition as such.

Aparna Chandra’s contribution is also more apprehensive about the role of courts. Addressing the Supreme Court of India’s use of constitutional identity as an ‘adjudicatory device’, she is troubled by the ambiguity and vagueness of the concept, the uncertainty as to the method of its interpretation and by the tendency of judicial interpretation of ‘fix’ meaning of a concept that should be ‘underdetermined, contestable, and open to political negotiation’.

These new lines of critique sit alongside a growing chorus of criticism that views identity as unhelpfully vague, dangerously capacious, and ripe for abuse. This line of argument has sprung from the rise of illiberal regimes in Europe that have exploited constitutional identity as a means of resisting liberal constitutional commitments. This phenomenon is explored in detail in a new work by Julian Scholtes, The Abuse of Constitutional Identity in the European Union (2023) reviewed in this volume by Giuseppe Martinico.

Returning to the opening article of this volume, the central ambition of Jacobsohn’s article is to rescue the concept of constitutional identity from such criticism through two lines of defence. The first lies in demonstrating that abuse of the concept (and also the critique of that abuse) depends upon ‘static conceptual understanding, according to which identity is discovered in text or history and then largely regarded as unalterable’. It is best addressed, then, by returning to the concept’s foundational understanding as a flexible and contested idea, an idea pursued as well by Aparna Chandra and Bui Ngoc Son.

As a second line of defence, Jacobsohn insists that the concept of ‘identity’ has normative power as a standard against which constitutions are measured. This idea might seem to require something of a reverse course, requiring a fixed and determinate concept rather than a flexible and contested one. The argument, however, takes a counterintuitive turn when Jacobsohn argues that a capacious concept of identity that includes imperfect constitutions maximizes the power of ‘identity’ to hold constitutional orders to account:

If the identity designation were to be reserved only for constitutions in compliance with the norms of constitutionalism, then the potential for progressive relocation would be deprived of the rhetorical resources embedded in the disharmonies of constitutional identity. The critic of a defective constitutional order should be able to use the terminology of identity to detail the deficiencies of her extant constitutional identity, and then to mobilize around the discordant parts of that identity to attain greater acceptance for constitutionalist norms.7

But it should not go unnoticed that for this second line of defence to work, the concept of ‘identity’ cannot be infinitely flexible or capacious either. There must be something against which a constitution can be measured: a core set of criteria that describe what lies at the heart of the very idea of a constitution.8 This theme is pursued in various ways by all contributions to this volume. Although of course it is not possible to comprehensively examine how different constitutional systems grapple with this question, we are delighted to have explorations of the question that are focussed on such a diversity of states across the globe. These ideas bring us to the very foundations of the fields of constitutional law and constitutional studies and provides an ideal starting point for a new journal. We are delighted to launch the journal with a series of articles taking these ideas in new and exciting directions and we are sure that the journal will return to these foundational issues again.

A note of thanks from the General Editors

At the launch of this first issue, we would like to thank a large group of colleagues who have helped us launch this endeavour. These papers were presented at a series of online workshops in June 2022 and we were greatly assisted by those who provided invaluable commentaries and actively participated in discussions: Antony Anghie, Gautam Bhatia, Sarah Biddulph, Wen-Chen Chang, Sujit Choudhry, Melissa Crouch, Eoin Daly, Maartje de Visser, Rosalind Dixon, Patrick Emerton, Francisca Pou Giménez, Garbór Halmai, Tarunabh Khaitan, Coel Kirkby, Heinz Klug, Harshan Kumarasingham, David Landau, Zim Nwokora, Kate O’Regan, Theunis Roux, Zoë Robinson, András Sajó, Cheryl Saunders and Arun Thiruvengadam.

Since establishing the journal, we have relied on the members of our Advisory Board for their wisdom and guidance, and upon the generosity of scholars who graciously accepted invitations to provide peer review.

Bringing these volumes to fruition has also drawn upon the dedication of our founding Editorial Board which includes Associate Professor Rehan Abeyratne (book review editor), Dr Erika Arban (comments editor) and Dr Dinesha Samararatne and Dr Stijn Smet, who joined the Editorial Board as guest editors for volume 1. We are also deeply grateful to James Choi, Danielle Feng, James Gunn and Deylan Kilic-Aidani for bringing their vast experience and brilliant editorial skills to the team, and to Edward Elgar Publishing for supporting our vision for the journal and for editorial assistance. We also acknowledge the support of the Australian Research Council through Adrienne Stone’s Australian Laureate Fellowship.

  • 1

    Later, in an important piece on comparative methods, Ran Hirschl called for a shift from ‘comparative constitutional law’ to ‘comparative constitutional studies’, echoing Saunders’ vision. See

    Hirschl Ran , '‘The Question of Case Selection in Comparative Constitutional Law’ ' (2005 ) 53 (1 ) American Journal of Comparative Law : 125.

  • 2

    We prefer the older symbolism of John Stuart Mill who invoked the Black Swan as an instance of a bad (and later falsified) induction from experience to the more modern usage by Nassim Nicholas Talebb to describe a highly improbably ‘outlier’ event. See

    John Stuart Mill, A System of Logic, Ratiocinative and Inductive (8th edn, 1882) Ch III

    ; Nassim Nicholas Talebb, The Black Swan: The Impact of the Highly Improbable (Random House, 2007). See also, Karl Popper who invoked the Black Swan as an instance of ‘falsafiability’ in The Logic of Scientific Discovery (Routledge, 2002) 83, 387–88.

  • 3

    Jacobsohn Gary Jeffrey , Constitutional Identity , (Harvard University Press , 2010 ) 7.

  • 4

    Ibid at 4–5.

  • 5

    BVerfG, 2 BvE 2/08, 30 June 2009.

  • 6

    Article 4.2, Consolidated Version of the Treaty on European Union [2008] OJ C115/13.

  • 7

    Jacobsohn Gary Jeffrey , '‘How to think about the reach of constitutional identity’ ' (2023 ) 1 Comparative Constitutional Studies .

  • 8

    This is a long-standing theme in Jacobsohn’s work on identity, see

    Jacobsohn Gary Jeffrey , '‘An unconstitutional constitution? A comparative perspective’ ' (2006 ) 4 International Journal of Constitutional Law : 460, 485.

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