representation and majority voting.
46
The functions of constitutional review tend to
be conferred either on a specialist constitutional court or on superior courts in the
general court system, offering a choice between concentrated and diffuse review.^47
Most federations are variants on US dualism or German integration.^48 States are
prepared to mix and match different options from different constitutional traditions
in ways that may further blur systemic distinctions.^49
Finally, some convergence of constitutional theory is apparent too, although its
extent is difficult to measure. In some instances it is attributable to dissemination of
the constitutional principles that the theories seek to explain. The widespread
acceptance that constitutional legitimacy rests on the authority of the people
of the state can be explained in this way.^50 In other instances, shared constitutional
theories reflect similar tensions within constitutional systems following institutional
convergence. The debate on the limits of judicial interpretation is ubiquitous,
for example, and follows broadly familiar lines.
51
In a few cases, theories forged in
response to historical conditions in one constitutional tradition prove attractive
in others once they become known. The burgeoning interest in theories about the
limits of a constitutional amending power is a case in point.
52
The phenomenon of
the internationalisation of constitutional law encourages the emergence of new
theories that transcend jurisdictional boundaries, seeking to explain the relevance
of the international sphere either by rationalising its interface with the state or by
reconceiving constitutionalism.
53
(^46) Andrew Reynolds, Ben Reilly and Andrew Ellis,Electoral System Design: The New
International IDEA Handbook(Stockholm: International Institute for Democracy and
Electoral Assistance, 2005 ), pp. 27 – 9.
(^47) Mauro Cappelletti,The Judicial Process in Comparative Perspective(Oxford: Clarendon
Press, 1989 ), pp. 133 – 49.
(^48) Cheryl Saunders, ‘Comparative conclusions’, in Katy Le Roy and Cheryl Saunders (eds.),
Legislative, Executive and Judicial Governance in Federal Countries(Montreal and Kings-
ton: McGill-Queen’s University Press, 2006 ), p. 361.
(^49) For example, the South African Constitution combines an integrated federal system and
specialist constitutional court along German lines with a British-style parliamentary
system. New Zealand, also with a British-style parliamentary system, has modelled its
electoral system on proportional representation in Germany.
(^50) Although the identity of ‘the people’ may be understood in different ways: see Martin
Loughlin and Neil Walker,The Paradox of Constitutionalism: Constituent Power and
Constituent Form(Oxford: Oxford University Press, 2007 ), pp. 5 – 6.
(^51) In this volume, it is a theme in the chapters on the Republic of Korea, Indonesia, India and
the Philippines and also, with reverse emphasis, in the chapters on Japan, Singapore and
Malaysia.
(^52) The ‘basic structure doctrine’, which implies a limitation on the power to amend consti-
tutional provisions considered to be fundamental to the constitution, was developed by the
Supreme Court of India drawing on constitutional theory and practice developed in
Germany:Kesavanandav.Kerala 1973 SCR 1461.
(^53) See Mattias Kumm, ‘The cosmopolitan turn in constitutionalism: on the relationship
between constitutionalism in and beyond the state’, in Jeffrey L. Dunoff and Joel P.
Trachtman (eds.), Ruling the World? International Law, Global Governance,