“Retired” Harvard Law professor Mark Tushnet is legendary for the quality and quantity of his scholarship. Earlier in his career, he was a founder of the revolutionary Critical Legal Studies movement. Then in the 1990’s, he became a pioneer, reinvigorating the field of comparative constitutional law. This important book contains numerous chapters related to Tushnet’s legacy. Although the whole book is worthwhile, I want to give special attention to law and political science professor Ran Hirschl’s spectacular chapter on Tushnet and the evolving field of comparative constitutional law, Comparative Constitutional Law: Reflections on a Field Transformed.
Hirschl initially mentions some of Tushnet’s books and articles on comparative constitutional law. One of Tushnet’s key books is Advanced Introduction to Comparative Constitutional Law. His 1999 Yale Law Journal article on the possibilities of comparative constitutional law, evaluating the different ways in which “comparing constitutional experience elsewhere,” if undertaken in a “cautious and careful” manner, might allow one to “sometimes gain insights into the appropriate interpretation of the U.S. Constitution,” was noteworthy both for its bravura intellectual style—the section on bricolage was especially interesting—and for its critical examination of future directions for the field.
As Hirschl shows, the vitality of that field is now beyond question. Decisions from the Supreme Court of Canada, the German Federal Constitutional Court, and the South African Constitutional Court are now widely known. In recent years substantial interdisciplinary work on autocracy has come to the fore. I would add that some books on comparative autocracy have even jumped academic boundaries and gained popular notice.
Next, Hirschl proceeds to a lengthy discussion of how political science departments overall have not sufficiently kept up courses on law and courts, especially in the comparative realm. He thinks this damages constitutionalism. This omission is especially ironic given the close political connection to law. By contrast, there was an earlier period in the late 20th Century where political scientists achieved fame for their work on real constitutional design. Tushnet—and Hirschl himself—have been substantially responsible for a shift back to cross- and inter-disciplinary work, with the modern field essentially being renamed comparative constitutional “studies.”
Hirschl next dissects the constitutional studies field. He asserts that countries in the North have generally been stagnant regarding constitutional change. He notes that some global Southern nations have been innovative, but that scholarship there has generally focused on a few nations, like South Africa and India. My own work on South Africa fits this category. Yet Hirschl gives exhilarating examples of more significant change in lesser-known nations within the “Global South.”
Numerous such countries have focused their constitutions on climate change and the environment, so-called third generation rights. The Supreme Court of Brazil has even characterized the Paris Agreement as a human rights treaty. Another major focus of some Southern constitutionalism is the dangers of urban density. As Hirschl points out, “If the entire world population (8 billion) lived in similar density conditions as Dhaka or Manila, it would fit within an area the size of Oklahoma.” Hirschl elaborates on how the metrics of political representation must be adjusted to account for increasing urbanization. He concludes by reiterating his powerful arguments that political science should refocus on these issues, and that scholars generally should highlight Global South nations. His survey of this comparative field is breathtaking.
There really are no strong arguments against his chapter, save for a friendly suggestion that some Northern nations may have been catching up some with the pace of change in the Global South. Students in Montana brought a powerful climate change case, though it was ultimately dismissed. France now allows some concrete constitutional review. And there has been a United Kingdom Supreme Court for a while. If study of the field continues to grow, in both the North and South, Tushnet will be due no small measure of the credit.
