Languages and comparative constitutional method

Comparative constitutional law analyses often engage, in some way, in constitutional theorising. For example, they may identify a similar phenomenon or idea present in different jurisdictions and seek to capture it by introducing a new concept or category. In some cases, the limits created by the language barriers we are all subject to can lead to the “invention“ of concepts that have existed in some form in jurisdictions we are not able to study. These concepts can then take a life of their own, with the result that not only their connections with older constitutional traditions are obscured, but the possibility of understanding them in alternative ways are diminished. This paper illustrates this problem through an analysis of the basic structure doctrine and the notion of constitutional identity‘s connections to the doctrine of the historical constitution, long present, for example, in Spanish constitutional discourse.

Comparative constitutional studies is one of the fascinating fields of inquiry that cuts across national borders, cultures, and legal systems. Yet, it is punctuated by considerations of jurisprudence and language. While its archive mainly consists of the experiences of the usual suspects, which practice liberal constitutionalism, its lingua franca is English. Even though there is a call to go beyond the usual suspects to enrich the archive of the field, language still structures the comparative constitutional inquiry. Because of this, many jurisdictions face the situation of “translate or perish“ regardless of the quality of their jurisprudence. In this regard, Africa has a linguistic advantage in the field. This is partly why the judiciary in Kenya, and its counterparts in South Africa before it, has attracted global attention instantly. In this paper, I will examine the potential and limits of language in comparative constitutional studies in the African context.

In the era of globalization, there is a tendency to believe that the use of a lingua franca can facilitate the interpretation of applicable law, strengthen the protection of human rights, create international communities of scholars. However, the choice of using a lingua franca is almost never neutral. Each language carries with it a conceptual background. The choice in favor of a given language makes it possible to impose specific legal concepts. In order to avoid forms of abuse and facilitate dialogue between legal cultures, the best tool appears to be the use of multilingualism. This latter constitutes the linguistic model adopted in the European Union. The European discipline of multilingualism is particularly detailed. Therefore, in this presentation I will analyze the European case in order to identify the advantages and disadvantages of using multilingualism, also for purposes of legal comparison.

In comparative constitutional law, language barriers are crucial. This involves two dimensions: The methodological challenges in translating foreign sources constitute a horizontal dimension - whereas structural challenges emerge when a legal system of certain (mostly European) countries are transplanted in other (non-European) jurisdictions. This is conceptualised by a vertical dimension. This paper will elucidate the latter and disentangle its complicated factors. First, transplanting law as a ruling instrument, without underlying background, distortions often occur in legal translation and interpretation. It may confuse the legal recipients and also comparatists. Second, such confusion appears especially in postcolonial countries where legal colonialism is perpetuated via legal terms interpreted by domestic elites and external analysts. Considering these, to avoid the formalistic comparison, a prudent and contextualised functional approach is required for more substantive comparison.