Towards a More Inclusive Constitutional Discourse: Overcoming Linguistic Barriers

—Maartje De Visser, Singapore Management University, Yong Pung How School of Law

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

The rise of English as the lingua franca is a well-known phenomenon that has affected many areas of our lives. When it comes to legal scholarship too, the current discourse is English-centered and conducted mainly through journals, monographs and edited volumes published by reputable publishing houses in English-speaking jurisdictions. Having a shared medium of communication holds promise for vastly expanding the academic comparative dialogue in depth and breadth as the pool of prospective participants is enlarged beyond those from Anglophone jurisdictions. The difficulty is realizing this vast potential. In my previous blogpost, I alluded to linguistic barriers that may affect the inclusion of narratives of the Global South in the comparative constitutional discourse. More generally, how many scholars from non-Anglophone jurisdictions (including in the Global North!) who study constitutional topics are sufficiently well-versed in English to produce the kind of academic work that meets the expectations of leading English journals and publishing houses? Even assuming the requisite linguistic ability exits, the willingness and time to may be lacking. Legal scholars are expected to contribute to the domestic constitutional discourse, critically evaluating new legislative or constitutional initiatives, facilitating judicial accountability by assessing the legal quality of domestic court decisions, or discussing the constitutional implications of major events in a country’s public or political life. Recent scholarship has put forward a stronger conception of the role of the constitutional academy as knowledge institutions or constitutional actors, playing a part in protecting constitutional democracy. In countries that have a small legal academy or those that are experiencing high levels of constitutionally salient activity, the domestic responsibilities for scholars may limit their capacity to (also) contribute to the wider comparative constitutional literature.

As such, while non-native speakers may eventually have a sustained advantage as they are able to take cognizance of materials from multiple jurisdictions, the fact remains that the mainstream English-centric field today is dominated by native speakers, whose interests in particular topics or legal systems have a formative influence on the content and direction of the field. Indeed, the existence of a lingua franca should not make us forget the continued existence and development of comparative constitutional law discourses in other languages. For the most part, those different national discourses exist and develop alongside, but not in conversation with, the English scholarship read and produced by the mainstream comparative constitutional community – and the latter is the poorer for it. 

To give just one example: the English discourse has witnessed the publication of several works devoted to the idea of constitutional dialogues between courts and legislatures and possible means for such dialogues to happen.[1] These works have been predominantly written by native speakers and focus predominantly on English-speaking (common law) jurisdictions.[2] An important impetus for this body of scholarship was provided by developments in Canada, the United Kingdom and New Zealand in the 1990s, which saw these jurisdictions devise new procedural responses to better defend constitutional values (particularly fundamental rights protection), without accepting unqualified judicial supremacy in achieving this objective. Judicial decision-making techniques and, to a lesser extent, procedural designs that similarly aim to mediate between ensuring constitutional supremacy and democracy can however also be found in non-English jurisdictions – which moreover often possess a longer genealogy. The German and Italian constitutional courts, for instance, can decide that a law is only barely constitutional and therefore require the legislature to act to ensure a more constitutional state of affairs; or find that a law unconstitutional, yet without declaring its invalidity, just like their Spanish counterpart, thereby giving the legislature space to rectify the situation; while the technique of (re)interpreting legislation to make it conform to constitutional requirements and hence save it from annulment is ubiquitous among constitutional courts in non-English speaking jurisdictions.[3] All these techniques have been the subject of rich commentary in foreign language scholarship,[4] but have taken up only limited bandwidth in the English-language comparative constitutional discourse.

This is a missed opportunity. It stymies our collective thinking about the available range of judicial techniques or design options to calibrate the court-legislature relationship, including their respective merits and the conditions under which those approaches thrive (or languish). In the terminology used by Ran Hirschl, this instantiation of what he calls “concept formation through multiple descriptions” mode of comparative law thus remains incomplete and underinclusive. In addition, there is a risk that the English literature implicitly endorses the existence of a common/civil law divide in relation to the debate about weak/strong forms of constitutional adjudication, when the difference may be one of form rather than substance.

More generally, it seems to me that there is a debate to be had about scholarly responsibilities regarding the use of our respective linguistic abilities to expand access to foreign materials, and, relatedly, expectations about what should count as a meaningful contribution to the field. To start with, there is a need for more scholarship that offers ‘contextual translation’,[5] whereby both the literal and the actual (invested and culturally-charged) meaning of constitutional concepts are translated into another language. Superb exemplars of such works include David Kommers and Russell Miller’s The Constitutional Jurisprudence of the Federal Republic of Germany, Manual José Cepede Espinosa and David Landau’s Colombian Constitutional Law, or László Sólyom and Georg Brunner’s Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court, which offer translated excerpts of judgments, supported with annotations that explain how leading notions – like dignity, equality, privacy, federalism or democracy – are understood in Germany, Colombia, and also in Hungary before that country’s Fidesz-led constitutional transformation.

On a related note, there has been an earlier tradition in general comparative law of publishing leading scholarly treatises in multiple languages that deserves to be endorsed and expanded. This is particularly relevant for countries practicing the civil law tradition, which tend to be non-English-speaking, and which have generally have a strong doctrinal and jurisprudential culture. Several civilian scholars have had a formative influence on constitutional theory and practice in their jurisdiction, including the workings of systems of constitutional justice. For a good understanding of how constitutions are conceived and operate in civil law countries, it is hence insufficient to rely on translated court decisions; rather, there is a need to move beyond court-centricity and extend translation efforts to scholarly writings, which should be treated as much as part of the constitutional canon as foundational judgments are.  Alongside translations of handbooks and treatises, the compilation of casebooks should be encouraged on account of their valuable role as a resource for comparative research alongside their extant role as a pedagogical tool. This is especially so when such casebooks feature primary materials from a diverse range of foreign jurisdictions alongside commentaries by scholars well-versed in (and preferably from) those jurisdictions.

As for shorter works of scholarship, I-CON has recently published its first ever issue in Spanish, which will hopefully herald the embrace of true multilingualism as a general policy. One obvious way forward is for journals to require that every article is preceded by multi-lingual abstracts, so that those who are not sufficiently proficient to read the entire piece can at least partake of the core arguments advanced. Book review sections offer another promising avenue: these should be used to highlight new monographs or treatises in a foreign language, with emphasis placed on how these new works relate to older writings on (comparative) constitutional law in that language as well as to the topics du jour in the English discourse. While none of these suggestions will entirely resolve the current linguistic fragmentation within comparative constitutional scholarship, they will help counter unconscious tendencies to treat the English-language discourse as presenting a comprehensive and authoritative account of thinking about constitutional questions from a comparative perspective and enrich that discourse by integrating at least parts of the foreign language literature.  

Suggested citation: Maartje De Visser, Towards a More Inclusive Constitutional Discourse: Overcoming Linguistic Barriers, Int’l J. Const. L. Blog, May 18, 2022, at: http://www.iconnectblog.com/2022/05/towards-a-more-inclusive-constitutional-discourse-overcoming-linguistic-barriers/

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[1] See, e.g., Mark Tushnet, Weak-Form Judicial Review and “Core” Civil Liberties, 41 Harv. Civil Rights-Civil Liberties L. Rev. 1 (2006); Rosalind Dixon, The Forms, Functions and Varieties of Weak(ened) Review, 17 Int’l J. Const. L. 904 (2019); Aileen Kavanagh, The Lure and Limits of Dialogue, 66 U. Toronto L. J. 83 (2016); Kent Roach, Dialogic Judicial Review and Its Critics, 23 Sup. Court. L. Rev. 49 (2004); Yap Po Jen, Constitutional Dialogue in Common Law Asia (2015).

[2] For a notable exception: see Mark Tushnet and Rosalind Dixon’s discussion of Japan in Weak-form review and its constitutional relatives: An Asian perspective, in Comparative Constitutional Law in Asia (Rosalind Dixon and Tom Ginsburg eds., 2014).

[3] For a comparative overview with translated excerpts, see Maartje De Visser, Constitutional Review in Europe: A Comparative Analysis, 291-324 (2015).

[4] See e.g., Benda/Klein, Verfassungsprozessrecht (2020) para. 1280 et seq; Andrea Ridolfi, Un nuovo tipo di doppia pronuncial: la via Italiana alla Unvereinbarerklärung?, 3 Nomos 1 (2019);  Alexandre Viala, Les reserves d’interprétation dans la jurisprudence du Conseil constitutionnel (1999).

[5] Cf. Paul Bohannan, Ethnography and Comparison in Legal Anthropology (1997).