iv. comparative challenges
The new paradigm
The challenge for comparative constitutional law that has been sketched in this
chapter may be summarised as follows. Internationalisation has caused significant
convergence of constitutional phenomena in recent decades. International law,
international and regional institutions and horizontal transplants are the principal
vehicles, although the homogenisation of culture and public expectations also plays
a part. But convergence is far from complete. If overstated, it hinders comparative
understanding. Internationalisation affects different countries to different degrees.
Convergence is often superficial and is likely to be partial. The dynamics of
internationalisation may give rise to a new constitutional mix, rather than a facsimile
of a standard model. Despite predictions of its decline, moreover, the state remains
the most likely setting for the implementation of democratic government, at least for
the moment, in consequence of its relationship with its people. Constitutions have
an umbilical relationship with the states for which they respectively were made that
in varying degrees affects their form, status and operation in practice.
In the second decade of the twenty-first century there are almost 200 states, each
with its own constitution. Many subscribe to shared constitutional values, including
democracy, respect for human rights and the rule of law. The processes of inter-
nationalisation have tended to standardise the content of these values and pare down
the principal institutional options through which they are delivered. There are
evident textual similarities between parts of many constitutional documents.
But differences remain, not only between the principal institutional models but in
a myriad of important details, including the relationship between domestic and
international law. These are exacerbated by the eclecticism of transplants, creating
new combinations of institutions, norms, theories and cultures; by the emergence of
new questions that constitutions are expected to resolve; and by the continuing
diversity of all aspects of the contexts in which constitutions work in practice.
Despite internationalisation, for the moment, at least, it is impossible to grasp the
constitutional arrangements of different states without employing comparative tools.
There is a question about which comparative tools now are most suitable for the
purpose. Old taxonomies based on legal or constitutional families or traditions also
have been eroded by internationalisation.^106 While these always were vulnerable to
critique, if context was taken seriously, they facilitated some predictions about the
form and operation of state law, which now are less reliable. By contrast, conver-
gence of values may enhance the possibilities of functional comparison, subject to
(^106) Mariana Pargendler, ‘The rise and decline of legal families’ ( 2012 ) 60 American Journal of
Comparative Law, available at SSRN:http://ssrn.com/abstract= 1975273 (viewed 27 July
2012 ).