A European perspective

One could justifiably wonder whether the differences between von Bogdandy and Tushnet derive from differences in the geographical and cultural areas in which the two authors frame their research and writings. It is evident that von Bogdandy’s approach takes a European perspective and is especially concerned with the growing formation of a European legal order which can give – according to his research hypothesis – new currency to the project of the ius publicum europaeum: ‘a solidified European context for discussion and reception’, the doctrinal dimensions of which apparently go beyond the existence of the EU legal system. However, there is also an operational dimension to the discussion. Comparative law studies can make an important contribution to the identification of the basic features of European law held in common by the Member States of the Union and which bind them as well the governing bodies of the Union. Legal literature has taken note of these developments with the introduction, as a term of reference within the European debate, of the concept of the so-called European Constitutional Heritage.

This concept, which ‘refers to a collection of principles’, is at the basis of the collective constitutional cultures of Europe, even if its interpretation and application in the various national constitutional orders differs.Footnote ³ Within the European polity, the integration of the constitutional experiences of the concerned states is achieved by means of a constitutional discourse which ‘must be conceived of as a conversation of many actors in a constitutional interpretative community’.Footnote ⁴ It involves in particular European and national judges. But the concept not only facilitates the consideration of the shared constitutional doctrines of the European States, it also has practical – and not merely cultural – relevance. It can be useful to remember that the origins of current thought on this concept are naturally linked to the ascent of the European Court of Justice’s fundamental rights case law. For many years, the Court has undeniably been engaged in investigation into the common constitutional traditions of the various EU Member States.Footnote ⁵ The relevance of European constitutional traditions has even been recognised by the constitutional courts of the newer EU Member States. For instance, in its Lisbon decision the Polish Constitutional Tribunal confirmed ‘the solemn character of constitutional traditions, which are common to the member states’.Footnote ⁶ And the implications of such judicial activity have not been lost on the constitutional and ordinary legislatures of the states concerned.

Alessandro PizzorussoFootnote ⁷ rightly suggests that the European Constitutional Heritage can be identified with the use of comparative law techniques of research and construction, which in turn define the relevant features of the internal legal orders of the Member States. Not only judges and legislators are interested in the use of the concept. International bodies adopt a similar approach when they monitor Member State compliance with their fundamental principles and values. The Venice Commission’s advisory mandate entails setting up a dialogue with the states that are members of the Council of Europe, and monitoring the implementation of the provisions of the Council’s legal system aimed at ensuring compliance with the fundamental principles and values this institution was created to guarantee.Footnote ⁸

This is a well-known effect of the principle of conditionality.Footnote ⁹ Commentators recognised its importance in the years after the Berlin Wall fell, when former communist and soviet States first started seeking admission to the Council of Europe, and later membership of the European Union. The Venice Commission played a crucial role in advising and supporting democratic transitions in Central and Eastern Europe. Other European bodies were involved in the process too. The institutions of the Council of Europe are allowed to deny accession requests or impose sanctions if its monitoring body finds that a Member State’s actions breach accepted norms. In the context of Organization for Security and Co-operation in Europe, the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe supports and promotes democracy and the rule of law by observing elections, reviewing legislation and advising governments on the development of their democratic institutions. In both cases – Council of Europe and the Organization for Security and Co-operation in Europe – the functioning of the system implies the elaboration of guidelines of constitutional engineering and the establishing of yardsticks for the evaluation of the treatment of rights and freedoms based on the national traditions of European constitutionalism. The Commission of the European Union does the same when it supervises the implementation of the acquis communautaire by candidate states, or the reforms Member States must implement to comply with obligatory norms.Footnote ¹⁰

The continuing importance of comparative constitutional law

If we keep the European dimension of von Bogdandy’s perspective in mind, we can better understand the conclusions Mark Tushnet reached in his contribution. When he considers the general expansion of the field of law in light of the ‘inevitable globalization of constitutional law’,Footnote ¹¹ his research focuses on the end result in a process which is not limited to Europe and is characterised by a progressive blurring of the geographical boundaries which have traditionally defined the field of comparative law research. However, since this is an ongoing progress, we do not believe that studying the varying national constitutional experiences has become irrelevant. In our view, the process towards the globalisation of constitutional law requires a comparative methodological approach. Even within the framework of the EU, geographical boundaries still existFootnote ¹² and we must take them into account if we want to understand the unavoidable and difficult balancing act involving the states’ residual sovereignty and their basic constitutional features, on the one hand, and the exigency of the formation of the transnational (or international)Footnote ¹³ law of the Union, on the other. In this context, lawyers deal with provisions in the Treaty on the European Union that safeguard the constitutional identity of the Member States or that demand compliance with the common principles and values whose observance is a conditio sine qua non of continued membership. Both require a comparative approach. The identification of the constitutional identity of a state implies a comparison with other states, and their common traditions are identified by surveying the multiplicity of traditions that exist in the states concerned. If we abandon a comparative constitutional perspective when considering European law, we run the risk of favouring a monistic approach at the risk of losing the advantages offered by the pluralist approach suggested by Miguel Maduro.Footnote ¹⁴

The advent of a common, global legal space characterised by an absence of traditional boundaries will likely depend on the progressive expansion of the effects of globalisation. The expansion of the EU may be considered – at the regional level – as the first, constituent, step in a long process. We may be observing a transition from the fragmentary experience of the various national legal orders to a global legal space constructed from the raw materials of national experiences – as we see happening today in Europe. Therefore, a comparative methodological approach is still important and productive, and not only for the sake of scientific research and knowledge. The comparative methodological approach might even prove more immediately practical and operationally useful than in the past, as demonstrated by the European experience. The European perspective provides a constructive point of view from this side of the Atlantic that is possibly more conducive to the study of the regional phase within a larger process. Superregional effects probably appear more frequently on the radar of researchers who approach the phenomenon from a different perspective.

Authoritarian tendencies and the European constitutional traditions

Since 1989 and the fall of the Berlin Wall, the monitoring functions exercised by international institutions have gained in importance in the context of what has been defined, in a seminal article by Bruce Ackerman,Footnote ¹⁵ as ‘the rise of world constitutionalism’. Monitoring bodies now also exercise advisory functions, which should facilitate the spread of constitutionalism into in new areas. At the end of the twentieth century, the former members of the Warsaw Pact engaged in the process of accession to the Council of Europe, and later to the EU. It was therefore necessary to ascertain whether they were in compliance with the fundamental principles and values of those European supranational institutions. Their sovereignty was never in danger as they had agreed to accept external advice and monitoring from the competent bodies as part of the accession package; it was not imposed.Footnote ¹⁶ In order to fulfil their monitoring task, the bodies developed a ‘yardstick’ to measure adherence to the European Constitutional Heritage, which assumed normative relevance as soon as it became binding through operation of the principle of conditionality. A dialogue has been maintained with the authorities concerned to avoid any hint of authoritarianism.

This led, little by little, to the burgeoning of transnational (or international) constitutional law, operating under the aforementioned principle of conditionality. However, its relevance to the Member States of both the Council of Europe and the EU is threatened by the emergence of authoritarian tendencies, a backlash against liberal democracy supposedly justified by the primacy of state sovereignty and security, as demonstrated recently in Russia, Hungary and Poland.Footnote ¹⁷

Conditionality is sometimes no guarantee of satisfying results. After admission to the Council of Europe or the EU, certain states flouted recommendations: Poland has not yet fully acknowledged recommendations to reform its constitutional court made by the governing bodies of the Council of Europe and the EU on the basis of opinions adopted by the Venice Commission, and Hungary has only partially accepted similar remarks on its judicial organisation.Footnote ¹⁸ The attitude of States that do not accept the prevailing norms or their sources put the credibility and usefulness of the comparative approach in defining the European Constitutional Heritage in peril. But even in these cases, comparative legal analysis and interpretation may yield positive results from an historical perspective. A complete evaluation of recent developments is only possible through exhaustive examination of the authoritarian aspects of the mentioned constitutional reforms in light of historical European traditions and the constitutional principles and values of the other European States that inspired the ongoing development of supranational institutions.

The importance of interpretation and application of constitutional provisions

Use of the comparative approach yields determinative suggestions for the identification of the basic elements of the relevant European legal doctrines in the frame of constructivism, as mentioned by von Bogdandy in his contribution. Comparison of the various legal orders also contributes to a better understanding of the national identities at stake – and of their differences. Although knowledge of the written constitutional and legislative provisions of the State concerned matters when compliance with the European Constitutional Heritage is being monitored, its effective interpretation and application in light of the moral and philosophical traditions of constitutionalism are equally relevant, a point correctly appreciated by Tushnet. Giovanni BognettiFootnote ¹⁹ emphasised the importance in comparative constitutional law studies of knowledge of the concrete application and interpretation of the constitutional provisions concerned. The same exigency is present in the field of constitutional monitoring. If we want to grasp the reality of constitutional experience we must examine the socially effective result of the way the written texts are understood, the norms that emerge through their interpretation.Footnote ²⁰ This is not necessarily an approach based on a realist theory of the law, because even a formal take cannot avoid considering the concrete application of interpretations of legal provisions. The Kelsenian design of the Stufenbau of normative sources construes the practical judicial or administrative interpretation and application of constitutional and legislative texts as the last stage in the epiphany of the creation of law.Footnote ²¹ Comparative analysis only makes sense if we develop its doctrines while taking the concrete practical use of constitutional and legislative provisions into account.

The experience of the Venice Commission with organisational models of the judiciary clearly demonstrates that its approach is especially pertinent to the exercise of monitoring functions. The Commission frequently remarks that the judicial organisation needs to be kept separate from the other powers of State. The Mediterranean model of autonomous judicial councils has been proposed to the new democracies of Central and Eastern Europe as an institutional tool that could ensure the independence and neutrality of the judiciaries.Footnote ²² However, the Commission added that in countries where a judiciary dependent on the executive is long-standing tradition, this arrangement will also suffice as long as the relevant practices respect judicial independence and neutrality.Footnote ²³ It is evident that in this case the Venice Commission does not limit its analysis to the relevant written constitutional and legislative provisions, but also thinks ahead by taking their concrete interpretation into account. It explores whether their application is inspired by the constitutional principle of judicial independence.

Is the credibility of (hard) law being vanquished by soft law according to a contraposition postulated more than 30 years ago?Footnote ²⁴ Soft law does not impinge upon the construction of legal theory insofar as it is similar to, or overlapsFootnote ²⁵ with, well-known venerable concepts ‘such as gentlemen’s agreements, comity, non-binding agreements, or – in English constitutional law – constitutional Conventions’. Moreover, after the contributions of Ronald Dworkin on the subject, the graduated effects due to the regulation of norms are a frequently-studied phenomenon.Footnote ²⁶

In conclusion, recent experience suggests that it is not sufficient to develop a scientific theory, but that one should also consider its practical application as a means of verifying the theory’s development. Political and moral doctrines, as well as the historical experiences of constitutionalism, must be integrated in comparative constitutional law’s studies and researches. For instance, the history of constitutional development in Europe allows us to distinguish between contributions of different states to the spread of constitutionalism by geographical area. Some states have, since the very beginning, been at the centre of the development and implementation of constitutional doctrines while other countries have remained – for varying political and social reasons – at the periphery of those developments or taken part in them in an ephemeral and occasional way. This is why Western European constitutional experience weighs so heavily upon the European Constitutional Heritage.Footnote ²⁷ Political movements in certain European states have contested this orientation by appealing to ancient national traditions to interpret the doctrines of constitutionalism, but they run the risk of citing historical anachronisms.Footnote ²⁸ Events in certain countries might be worthy of some attention although, for various reasons, they cannot be construed as landmarks of European constitutional tradition. This is the case, for example, with the Polish Constitution of 1791, which was never applied.Footnote ²⁹ Constitutionalism in that country only took root following the sad experiences of the twentieth century and the fall of the soviet regime. Historical traditions cannot be invoked to explain the recent constitutional crisis, although the Polish authorities may think they do. The continuing relevance and development of the Magna Carta in the United Kingdom are entirely missing in the case of the Hungarian Bulla Aurea,Footnote ³⁰ which was interpreted during the twentieth century as consistently awarding the nobility tremendous privileges. It disregarded the basic principle of equality of treatment and non-discrimination – it failed to recognise the dignity and rights of the individual. Therefore, the Bulla does not credibly create precedents for contemporary Hungarian constitutional choices. Recently, the Venice Commission declared that the traditional Russian and Ukrainian institution of the Prokuratura (office of the public prosecutor) is not in compliance with the guidelines that safeguard human rights and the rule of law.Footnote ³¹ Moreover, doubts arose about the compatibility with the principles of the European Constitutional Heritage of the references in the Russian Constitution (Article 131) to traditions of that local government, whose social orientation Alexander Herzen appreciated.Footnote ³²

A common endeavour

The examples given above all concern the organisation of the powers of state, which are closely monitored by the supranational institutions for compliance with relevant principles, such as those which are at the basis of the rule of law policies adopted by the Parliament and Commission of the European Union.Footnote ³³ Judges are especially concerned with safeguarding human rights and fundamental freedoms. Even in this field, also after the adoption of the EU Charter of Fundamental Rights, comparative constitutional law is still relevant. The Court of Justice and other courts continue to rely on comparative studies in order to give content to the rights and principles by which the authorities and Member States of the EU must abide. This arrangement is permanently in flux inasmuch as it is potentially affected by conflicting claims of supremacy of national versus European laws. Miguel Maduro, as quoted above, rightly emphasised that while ‘the EU claim of supremacy forces national courts to reconstruct even their national constitutional law (…) national constitutional claims also shape how EU law is developed and sensitive to national constitutional traditions.’Footnote ³⁴

This implies that judges and lawyers taking part in these developments participate in the creation of law, in some way completing and integrating the written law of the relevant Treaties and national constitutions and legislation. Within this overall framework, we are witnessing a progressive convergence of the different national legal orders – even between civil law and common law, as Tushnet correctly remarks. For instance, the principle of stare decisis resonates through the decisions of civil law judges, particularly when they concern the development of normative innovations, or when they are duty-bound to respect the decisions of supranational judges such as the European Court of Justice and the European Court of Human Rights.

Scholars and other legal professionals – even those not fulfilling formal legislative or judicial functions – have traditionally played a significant role in the creation of legal orders beyond the existing states, finding inspiration in the states’ common legal heritage, and this is still the case. Contributions by constitutional and legislative authorities are sometimes lacking or insufficient. This especially when there is a dearth of political initiative, or when intervention is limited to grandiose proclamations or the invocation of general principles, effectively leaving room for the other dramatis personae to develop the work in progress.

European history may illustrate this. The contribution made by lawyers and scholars to the formation of international and transnational constitutional law in light of the spread and acceptance of commonly-shared principles and values reminds us of the contribution to the development of the Jus commune – in a different economic and social context – by jurists, judges, notaries, and professional lawyers, and especially by scientists and legal academicians of the Middle Ages, who directly took part – as Paolo Grossi suggestsFootnote ³⁵ – in the reception of Roman law, which itself knew no geographical or political borders. And we must not forget the importance of Savigny’s concept of the lawyer’s Beruf for legislation and jurisprudence, which envisaged the formation of a common legal unity by taking a novel approach to the traditional legal experiences of the German States of the time.Footnote ³⁶