[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Katalin Kelemen reviews András Jakab, Arthur Dyevre & Giulio Itzcovich’s book on Comparative Constitutional Reasoning (Cambridge 2017)]
—Katalin Kelemen, Associate Professor in Law, Örebro University, Sweden
This gap-filling edited collection on comparative constitutional reasoning is the final product of a five-year research project, involving 25 scholars from four continents who authored the various contributions, each examining one court’s style of constitutional reasoning. The focus is on constitutional reasoning by judicial actors and, more specifically, on their “justificatory reasons” (i.e. the justifications that they publicly adduce for their decisions) rather than their “motivating reasons” (i.e. the motives and mental processes that lead them to choose a particular course of action), even though the latter cannot be completely ignored either (see pp. 10-12). The originality of this volume lies in the method applied by the authors, a combination of quantitative and qualitative analysis that produced an unprecedented systematic account of constitutional reasoning.
The comparative analysis involves a thorough examination of the reason-giving practice of a total of 18 courts, including seven supreme courts, nine constitutional courts, and the two European courts (the European Court of Human Rights [ECtHR] and the European Court of Justice [ECJ]), which offered the data for the research. The selection of courts represents a fair balance between European and non-European jurisdictions, and between ordinary supreme courts, specialized constitutional courts and regional courts. It reflects a relatively fair balance between different legal traditions, as four of the 16 examined national courts belong to the common law tradition, ten to the civil law tradition and three to a mixed system, but none of them represents the Scandinavian or Nordic countries, while these also have a long constitutional tradition. Interestingly, the non-Kelsenian French Constitutional Council has also been involved in the research, and indeed the results show that it is an outlier in several respects when it comes to constitutional reasoning (for example, it seldom employs purposive interpretation, never makes use of references to precedents [p. 763], and displays a lower variety and diversity of reasons it adduces for its rulings [p. 766]), as it could be expected.
In a masterfully written introduction, the editors of the volume (who led the research project) explain that the past three decades have witnessed a dramatic rise in the power of courts all over the world, and constitutional judges (meant in a broad sense, thus including judges sitting on ordinary supreme courts with the power of constitutional review) have been at the forefront of this remarkable development. They claim that there is hardly any facet of public or private life that would have been left untouched by the judges’ steadily expanding reach. As a consequence, constitutional argumentation have become an integral part of public discourse (p. 1). At the same time, even though constitutional judges have the power of setting aside democratically enacted laws, they lack democratic credentials, as they are not elected and cannot be voted out of office. In such a situation, judicial reasoning plays an essential legitimacy-building role. By demonstrating that their decisions are based on sound justifications, constitutional courts can achieve social and political acceptance. For this reason, it is important to explore what these justifications are and how they vary across constitutional systems of the world (p. 2).
While constitutional reasoning has been the object of a vast literature in legal scholarship and constitutional theory, the novelty of this research lies in two aspects. First, instead of a normative focus, i.e. trying to explain how constitutional judges ought to reason, this project aimed to offer a systematic account of how they do actually reason. Inducing any theory from this account was just the next step. Second, this research project is part of a wider empirical shift that is taking place within comparative constitutional scholarship (pp. 9-10).[1] The empirical analysis is carried out on the basis of 40 “leading cases” from each jurisdiction involved, chosen by the authors of the country reports after the consultation of five mainstream legal experts of the respective legal system designated by the authors themselves (pp. 28-30). The quantitative analysis of these leading cases was then performed on the basis of detailed questionnaires and spreadsheets filled in by the authors. This impressive amount of data and the results of the various statistical analyses have been all made freely available online,[2] which greatly contributes to the value of this research project, as it allows other researchers to use them for further inquiries into various aspects of judicial practice.
As to the single country reports, there is a good balance between coordinated and free evaluative content. The authors follow the same thread and answer the same questions, but the different questions are relevant to a different extent in relation to the various examined courts. The authors could also offer their own reading of the questions, and in the report they could refer to cases not included in the 40 leading cases in the quantitative analysis. It was especially important with respect to the two regional courts, the ECtHR and the CJEU, which had many specificities to be taken into account. Indeed, even though these two regional courts have undeniably several commonalities with national constitutional courts, as the authors convincingly demonstrate (pp. 239-240 and 277-282), it seems a little bit far-fetched to treat them equally. It might have been a more appropriate research design to carry out a separate comparative analysis limited to these two courts and then compare the results with those of the comparative analysis of the national courts. In this way one could also investigate the similarities and differences between regional and national courts and offer a comparative evaluation of the constitutional nature of the ECtHR and the ECJ. Questions on constitutional reasoning specific to these two courts include, among others: Can references to the laws of the Member States / Contracting States be taken into account when examining references to foreign law as a type of reasoning? And, in particular, to what extent can these be treated in the same way as references to the laws of third countries, if such references exist? Moreover, it seems to be a common trait of the ECtHR and the CJEU that they prefer evolutive interpretation to subjective teleological reasoning (pp. 261 and 300-301), thus they avoid relying on the travaux préparatoires of their founding treaties (pp. 263 and 301). They also avoid employing non-legal arguments (pp. 264 and 301-303), while they make a frequent use of internal harmonising arguments or systematic interpretation (pp. 263 and 294-295). To what extent can these commonalities be explained by the international or supranational nature of these courts? What impact does multilingualism have on the courts’ style of reasoning? These questions have been addressed by others, but they remain unanswered here, if not to a limited extent within the ambit of the reports the ECtHR (at pp. 262-263, 267-268) and the ECJ (at pp. 308-309, 319-320), while this large empirical project could have offered more sophisticated answers and new perspectives.
In any case, the volume succeeds in avoiding the traps of edited books (see Joseph Weiler’s thoughtful piece on the blog EJIL: Talk! offering advices to young scholars), most importantly the risk of poor coordination between the various contributions. This was ensured by the detailed questionnaires, including thorough instructions, that the authors of the single reports had received and were required to use, and in particular by the explicit request to include a comparative section reflecting on what are perceived to be the principal differences and commonalities between the examined court and its counterparts in other jurisdictions (p. 35). In this way, not only the different contributions follow the same thread and answer the same questions, but they also engage, even though to a quite limited extent, in a dialogue with each other.
From the conclusive analysis, authored by the three researchers who led the project, we may learn, among other things, that the French, Austrian and Italian constitutional courts, together with the ECJ, are the least inclined to use generic concepts and employ the least diverse set of justifications, styles and argument forms (pp. 766-767). These four courts actually happen to be the (only) ones among the examined 18 courts that ban dissenting opinions, but the authors do not elaborate on this specific correlation, if not as part of a way of judicial communication that is based on a rigid, highly ritualised template (p. 781). Since the dataset does not make a difference between arguments used by the majority and arguments coming up in the separate opinions, but these were coded together (p. 33), it would have been probably not even possible to elaborate further on such correlation in the ambit of this research project (as the authors themselves admit in general terms [p. 796]).
However, the authors do elaborate in detail on other very interesting and eye-opening correlations. For example, the variations across decisions issued by the same court suggest that “constitutional opinion-writers pick the argument or set of arguments that best suits the result they want to achieve and ignore or play down considerations pointing in the opposite direction”, thus it seems that constitutional argumentation is “not an exercise in scientific exposition but a distinctively rhetorical enterprise” (p. 767). Another important achievement of this research is that now there is empirical evidence demonstrating that the common law vs civil law divide does bear relevance when it comes to judicial style and constitutional reasoning, even if the differences are not highly remarkable. Namely, common law judges make more frequent use of precedent-based arguments, their opinions have a more conversational and free-flowing style, and show a greater candour when it comes to acknowledging the influence of policy considerations and non-legal factors on the judicial process (pp. 768-772 and also 781). Also, mixed systems (Canada, Israel and South Africa were included in this project) seem to be closer to the common law than to the civil law tradition in this respect (p. 779). They actually represent the extreme value, with the common law tradition being the middle way between mixed systems and civil law, which the authors qualify as a true, unexpected “discovery” (p. 797). They also claim that courts outside the common law world are influenced by common law-style constitutional reasoning, which might explain the blurring demarcation line between common law and civil law modes of argumentation, at least in the case of landmark constitutional cases (p. 782).
Concluding, this volume is the mature product of a very thorough, innovative, and reasonably large research project. It is impossible to do justice to the richness of its findings in such a short book review. Thus lawyers and political scientists (students, scholars and judges alike) interested in constitutional reasoning are invited to read this book, which also offers an enjoyable reading experience, as it covers numerous exciting and relevant questions relating to constitutional thinking and judicial decision-making. At the same time, as the authors state themselves, many descriptive questions remain unanswered (p. 796), one of them being how leading cases differ from average cases in their style of reasoning. This research project has certainly shown a novel way to approach these questions.
Suggested Citation: Katalin Kelemen, Review of András Jakab, Arthur Dyevre & Giulio Itzcovich’s “Comparative Constitutional Reasoning”, Int’l J. Const. L. Blog, Dec. 31, 2017, at: http://www.iconnectblog.com/2017/12/book-review-katalin-kelemen-on-andras-jakab-arthur-dyevre-giulio-itzcovichs-comparative-constitutional-reasoning
[1] Two very important contributions to the methodological update of this discipline are the volume edited by Tania Groppi and Marie-Claire Ponthoreau on the use of foreign precedents by constitutional judges (Hart 2013) and the Comparative Constitutions Project directed by the American scholars Zachary Elkins, Tom Ginsburg and James Melton.
[2] The full CONREASON Dataset is freely available for download on the publisher’s website here. The detailed results of the various statistical analyses are available on the website of the Research Documentation Centre of the Hungarian Academy of Sciences’ Centre for Social Sciences here.
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