A constitution is the anchor of every polity. It encapsulates its basic organisational rules and values. Even if one of the key functions of every constitution is to provide system stability, no one would seriously suggest that a functional constitution could remain, throughout the course of time, a stone-carved immutability. Constitutions therefore change. In fact, they change all the time: through formal procedures of constitutional amendment or revision; through political practice and constitutional conventions; through constitutional adjudication, interpretation and re-interpretation of their necessarily abstract notions by courts; by the adoption of statutes or other laws with constitutional impact and significance and so on. Could such a diffuse, pragmatic and (by its nature) rather accidental process of constitutional change over time be generalised? Is there a theory of constitutional change?

A group of authors led by Dawn Oliver and Carlo Fusaro embarked upon this ambitious quest. Their stated aim (p. 5) was to identify a) the factors which influence changes to constitutions and b) the processes and procedures by which change takes place. Carrying out such a comparative analysis with respect to 15 selected legal systems would allow them to develop, in the conclusion of the volume, an overreaching theory of constitutional change.

The volume is divided into three parts. In a short introductory chapter, which is the only chapter in part one, questions and definitions for the study are set out. Apart from reproducing the questions, which the editors asked the authors of each of the national case studies to answer, the opening chapter provides helpful definitions of the notion “constitution” and “constitutional change”. Both are conceived of broadly, as not just including documents or processes with the formal sticker “constitutional” on them, but also materials or practices which have constitutional significance in their substance.

Part two contains fifteen country studies: eight European countries (Czech Republic; Finland; France; Germany; Italy; Spain; Switzerland; the United Kingdom); the European Union; five common law countries from outside of Europe (Canada; India; New Zealand; South Africa; United States of America); and Israel (which, in view of its British constitutional heritage, could be also counted largely within the common law category). The country studies are presented in the structure of a country report, with differences in style and approach amongst chapters: some chapters are more contextual and engaging, others rather descriptive.

Part three is composed of two chapters: a comparative analysis of constitutional change and a closing chapter entitled “Towards a Theory of Constitutional Change”. Apart from the index, the volume also contains a useful summary of the information relating to each of the jurisdictions studied in the second part, in the “Jurisdiction-based Chart” included at the end of the book.

The volume undoubtedly assembles a considerable amount of useful and interesting material relating to the individual countries studied. In this way, it provides a valuable compendium, making information on a number of less known constitutional systems available in English. Unfortunately, to a critical reader, it would appear that the broader comparative and analytical project on the theory of constitutional change remained somewhat underdeveloped.

First of all, reading both the introduction as well as final chapters, a reader still asks, what was the underlying aim of such a comparative study on constitutional change? What was the purpose of the study? Was the overall purpose of the study to provide explanations of past causality, future normative best practices, or both? To identify some universal laws of constitutional change? To identify, through comparison, best practices for guided and controlled constitutional change? To provide for model constitutional provisions which would be offered for future constitution-making around the world?

Secondly, since the reader does not know where the project was going, or why, it becomes equally difficult to judge whether or not it has chosen a good path in order to arrive there. More specifically, what informed the selection of the 15 systems which were compared? In their introduction at p. 5, the editors state merely that “We have deliberately selected countries whose arrangements seem to us to reflect the basic requirements of modern constitutionalism from which comparative analysis is possible.” To choose objects to study is any author's sovereign choice. It needs, however, to be explained. One may entertain doubts as to why just a few selected civil and common law countries appear to be satisfying these criteria, whereas other countries from within the same legal tradition – as well as for instance from South America, Asia or Pacific – do not. At the same time, it has been in precisely the largely omitted parts of the world where the greatest amount of constitutional change has been going on in the past decades (Central and Eastern Europe; post-Soviet space; Latin America) and might accordingly provide intriguing material for comparison. It could hardly be suggested that a majority of countries in these geographical areas do not today meet the “basic requirements of modern constitutionalism”, whatever these may be, precisely. However, even within the minority of systems in these parts of the world, which might currently indeed have authoritarian or even dictatorial systems, why should such systems be by definition excluded from a study on constitutional change, if one is indeed looking for a general theory of constitutional change?

A separate yet related question is why, if the European Union was included as one of the country studies as well, other international legal regimes were not. If the EU is to be believed to have a constitution, then why should other international regimes (WTO, United Nations, Council of Europe) have none. Of course, reservations concerning “constitution without demos and/or polity” can be made; but precisely the same is true for the ongoing EU debate.

Thirdly, there is a considerable disproportion between the assembled knowledge and its analytical use in the reviewed volume. The last two chapters in part three, which are supposed to represent the comparative and analytical crescendo of the volume, do not live up to that expectation. Chapter 17 entitled “Changing Constitutions: Comparative Analysis” offers something of a restatement of key points of the individual country studies contained in the second part. It certainly helps the reader to see the palette of possible solutions and methods when changing a constitution, but goes hardly beyond grouping countries into various boxes.

The final chapter, chapter 18, starts the reader on the journey “Towards a Theory of Constitutional Change”, by, inter alia, formulating a set of hypotheses as to when and how constitutions change. Leaving aside the rather intriguing methodology of formulating hypotheses in the final chapter to a book (the perhaps more conventional way might be to formulate hypotheses in the opening of a book with the aim of (dis)proving them in the course of the argument), one might also be puzzled by their content. The hypotheses include a number of quite intuitive statements, for which hardly any comparative study would need to be undertaken, or, conversely, a lot of sociological primary research would indeed need to be undertaken to prove a hypothesis at such a level of generality (e.g. “Constitutional continuity is valued more than ever.”; “All constitutions are “political” to some extent.”; “All constitutions change continuously.”; “Incremental and limited constitutional changes are easier to achieve than comprehensive revisions.”).

Some of the other stated hypotheses are rather contentious and/or difficult to establish on the basis of the country studies presented in the second part. For example, to state that “All constitutional arrangements include superconstitutional provisions or principles which are regarded as unamendable” is surely problematic not only with respect to the systems without even a distinct written constitutional document – the UK, Israel or New Zealand – but also with respect to e.g. the European Union. Is there a “superconstitutional core” of EU Treaties, which Masters of the Treaties, i.e. the Member States, could not change in the process of treaty revision? The EU chapter in the reviewed volume is silent on this issue and so are the editors in chapter 18, who do not provide any argument for such a (indeed very contentious) proposition. The suggestion that “Constitutional indeterminacy can facilitate anti- or un-constitutional activity” is also open to doubts: is it indeed indeterminacy, or rather the national constitutional culture, which is more important for the frequency of unconstitutional activity? One may contrast for instance one of the countries studied, the Czech Republic – where the constitution is a relatively detailed document, but, because of the limited constitutional culture, it is circumvented quite frequently in spite of its clear text – with for instance the UK, where indeterminacy of an unwritten constitution is still able to generate arguably greater faithfulness to the constitutional substance itself. Finally, to maintain that “Interpretation of constitutions by the courts is the most common form of constitutional maintenance and it often goes beyond maintenance.” is difficult, absent any empirical data to this effect in the country reports. Would it indeed be the courts that would most frequently reinterpret a constitution? What about the mass of daily political practice and the constitutional conventions and practices thereby created? What about the avalanches of statutory legislation in every European state today, which may be materially changing the constitution? Taking these two non-judicial inputs together, can one still claim that adjudication is indeed the “most common form of constitutional maintenance”?

Overall, comparative public lawyers will no doubt value the information on how constitutions change in the various legal systems assembled and represented in the volume. However, as far as a more general theory of constitutional change is concerned, we indeed remain on the journey ‘Towards a Theory of Constitutional Change’, if there in fact is any such destination.