Comparative Constitutional Law Theory Today Depends Upon Back-Translators

—Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco

[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]

‘How to Save a Constitutional Democracy’, the title of Tom Ginsburg and Aziz Huq’s 2018 book, perfectly captures the gist of comparative constitutional law theory’s present preoccupation. Since 2016 the field has churned book after book and essay after essay on this question. The focus is fueled by a sense that constitutional democracies (or at least constitutional rights) across the world are tottering, and that theory might somehow buttress them.[1] It is a worthy endeavor, but it also makes the field dependent upon back-translators.

As I said in my previous column, comparative constitutional law scholarship redescribes local legal practices in terms that are different from what practitioners would routinely use to describe them. We may call these re-descriptive terms experience-distant concepts, as opposed to the experience-near concepts which form part of every legal practitioner’s professional vocabulary.[2] A Philippine Supreme Court Justice will, for example, consider a controversy before her as involving a political question or the issue of legal standing, ripeness, mootness, etc.,[3] but she will rarely say that it presents a countermajoritarian difficulty.[4] She might agree with Alexander Bickel on this point, of course, but she would write her decision in terms of the legal doctrines, rules, and principles of Philippine law.[5]

Experience-distant concepts allow comparative constitutional law theorists to place different constitutional systems side by side so that they may each illuminate the others. Take David Landau’s essay, Courts and support structures: beyond the classic narrative, for example.[6] Landau’s thesis is that courts could and do take measures which can strengthen or even construct external support structures, viz., groups (domestic civil society groups, political parties, other courts, international NGOs, etc.) that help carry out judicial projects of social change. One such measure is the appointment of ‘Commissioners’ or a ‘Monitoring Commission’ which give civil society groups a prominent role in following up on a judgment; in Colombia and India the civil society groups constructed and strengthened by this structural remedy later succeeded in pushing for the passage of related reform legislation.[7] Here the term ‘external support structures’ and ‘measures’ are experience-distant concepts, ‘Monitoring Commission’ and Supreme Court ‘Commissioners’ are experience-near ones. To illustrate his thesis, Landau narrates how in two countries the peak court’s appointment of either Commissioners or a Monitoring Commission constructed and strengthened external support structures. The terms ‘external support structure’ and ‘measures’ allow Landau to compare the effects of analogous structural remedies on similar groups in different countries. Another way to put it is that these terms translate Colombian and Indian legalese into comparative constitutional law academese.

Let’s go back to our Philippine Supreme Court Justice above. Suppose reading Landau’s essay convinces her to try out measures for constructing or strengthening external support structures. At first blush it seems easy enough: give civil society leaders a prominent role in monitoring compliance with a decision. But then again, the Philippine Supreme Court had already tried something like that before, and it did not turn out so well. In 2008 the Court ordered the cleanup of Manila Bay, and the following year created a committee tasked with monitoring compliance with its order. Nearly a decade later, however, snail-paced compliance forced the Court to extend the still ongoing cleanup.[8]

Landau, of course, cautions against the indiscriminate copying of another court’s support-strengthening measures. The strength of a country’s political parties, the types and density of civil society groups within it, the kind of the rights which are enforced, etc. matter.[9] Philippine Supreme Court Justices, however, seldom have the time, training, and orientation to consider these factors. Their dockets are drowning in backlog, and their professional training has often molded them into Langdellian legal formalists.[10] I suspect that across the globe Philippine Justices are more the norm than the exception regarding these aspects. As for Landau, he couldn’t possibly become a local expert in every jurisdiction where his writings may find a judicial audience. Insofar as comparative constitutional law theories aim to offer judges guidance on how to save their own constitutional democracies, therefore, someone must back-translate their academese into various local legalese. Considerations relating to political parties, civil society groups, or rights, for example, might be translated into operable tests involving the doctrines of political question, standing, ripeness, or, in the Philippines, transcendental importance.

Back-translation, viz., the retranslation of a translated text back into its original language, is the most popular quality control method in cross-cultural research (anthropology, psychology, marketing, etc.).[11] It is mainly used to check the quality of translated research materials such as tests and questionnaires. More important for comparative constitutional law studies, however, is its use in what cross-cultural researchers call decentering; this is a process where both the original and the translated texts are considered equally important in the writing of the final version of the test, questionnaire, etc. to be translated for conducting research.[12] Analogously, decentering in comparative constitutional law theory would be a process where experience-near-concept translations of experience-distant-concepts are used to refine a theory so that it could better accomplish its aim, which in this case is to guide judges and Justices attempting to safeguard an embattled constitutional democracy.

Considering this dependence, a problem which comparative constitutional law scholarship confronts today is that there are too few back-translators and too little financial or other incentives to become one. This is an important concern that deserves its own essay.

Suggested citation: Bryan Dennis G. Tiojanco, Comparative Constitutional Law Theory Today Depends Upon Back-Translators, Int’l J. Const. L. Blog, Apr. 29, 2022, at: http://www.iconnectblog.com/2022/04/comparative-constitutional-law-theory-today-depends-upon-back-translators

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[1] Martin Loughlin, The Contemporary Crisis of Constitutional Democracy, 39 Oxford J. Leg. S. 435, 436–437 (2019).

[2] Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology 57–58 (3^rd ed, 2000)

[3] E.g., Francisco v. House of Representatives, G.R. No. 160261, 460 Phil. 830, 10 November 2003

[4] Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–17 (2^nd ed., 1986). I regard this book as a classic of comparative constitutional law theory, for reasons I explained in my previous column.

[5] See, e.g., Bryan Dennis G. Tiojanco, Stilted Standards of Standing, The Transcendental Importance Doctrine, and the Non-Preclusion Policy They Prop, 86 Phil. L.J. 606 (2012)

[6] In Erin Delaney & Rosalind Dixon (eds.), Comparative Judicial Review 226 (2018)

[7] Id. at 236–238

[8] Bryan Dennis G. Tiojanco, Integrated Diversity: A pluralist argument for the Philippine Writ of Continuing Mandamus, in Po Jen Yap (ed.), Constitutional Remedies in Asia 155, 174 (2019)

[9] Landau, supra n.6 at 230–241 

[10] There are notable exceptions in every court, of course; for example, current Philippine Supreme Court Justice Marvic M.V.F. Leonen.

[11] Sergiy Tyupa, A Theoretical Framework for Back-Translation as a Quality Assessment Tool, 7 New Voices in Translation Studies 35, 35–36 (2011)

[12] Richard Brislin, Back-Translation for Cross-Cultural Research, 1 J. Cross-Cultural Psychology 185, 186 (1970)