Current trends and challenges in comparative constitutional law: In search of a new equilibrium

1. Introduction

Comparative constitutional law is currently undergoing a significant transformation on a global scale.

Especially in the field of comparative constitutional studies, the recent past has witnessed an unparalleled number of important developments. They include the economic crisis of 2009, which interrupted a period of extraordinary growth and development; the Arab Spring, which raised the prospect of a democratic renaissance for many countries in the Middle East; and Brexit, which represented an unforeseen rupture in the EU project. In addition, we should consider the emergence of new external factors and phenomena, such as the COVID-19 pandemic, the advent of AI and the pressing issues of climate change, all of which had or are having a transformative effect on traditional power relations.

In particular, constitutional democracy is facing unprecedented challenges that threaten its very existence. This represents a significant departure from its post-World War II revival and the democratic transition processes of the 1990s. More generally, constitutionalism – broadly conceived as a legal, philosophical and social phenomenon – has been affected by the crisis of constitutional democracies around the world, from Europe to the United States, Asia and Latin America, which has been variously defined ¹ as ‘democratic backsliding’, ² ‘democratic erosion’ ³ or using oxymoronic terms such as ‘autocratic legalism’ ⁴ and ‘illiberal democracy’. ⁵ In addition, there has been a rise in populist movements and leaders, as well as growing political, economic and social polarization. ⁶

Heralding an era of bold change and disruptive trends, these diverse developments have redefined the landscape of the field of comparative constitutional law. Not only countries with weak democratic institutions but also more stable and mature democracies are threatened by these phenomena of backsliding or regression: this is a stark reminder of the inherent contradictions and weaknesses of constitutional democracy.

For these reasons, I believe that the future of comparative constitutional law requires an imaginative exercise. Contemporary constitutional orders are so diverse that they do not present a clear and predictable development direction. The comparative landscape of constitutional legal systems is rife with uncertainty and disorientation. A paradigm shift has begun to emerge in which constitutional democracy, once thought to epitomize political stability, has been found to be vulnerable.

Interestingly, the threat to democracy comes not only from anti-democratic events. It also comes from democratic processes themselves. As argued by Kim Lane Scheppele, ‘What is particularly disturbing about this phenomenon (…) is not the sheer number of democracies that have proven vulnerable, but instead, the way that a number of these failing democracies have retreated from their earlier standards. (…) Democracies are not just failing for cultural, economic or political reasons. Some constitutional democracies are being deliberately hijacked by a set of legally clever autocrats, who use constitutionalism and democracy to destroy both.’ ⁷

Moreover, the typical circuits of representative democracy are unable to mediate and find common ground between different social demands, leading to the emergence of the totalitarian potential ⁸ inherent in democracy. This paves the way for two of the most pressing trends in comparative law: executive aggrandizement on the one hand, and judicial activism on the other.

In the current context, comparative studies of constitutional law have become more and more relevant. They can help identify and diagnose the crisis of constitutional democracy, develop new theories, challenge long-held beliefs and provide solutions to current and unresolved problems.

The latest scholarship in constitutional and in comparative law provides an insightful view of the most pressing challenges in the field. Five leading examples are Martin Loughlin's Against Constitutionalism, ⁹ Aileen Kavanagh's Collaborative Constitutions, ¹⁰ Rosalind Dixon's ‘Responsive Judicial Review: Democracy and Dysfunction in the Modern Age’, ¹¹ Massimo Luciani's ‘Ogni cosa al suo posto’ ¹² and, with regard to the EU, Bobek, Bodnar, von Bogdandy and Sonnevend’s ‘Transition 2.0: Re-establishing Constitutional Democracy in EU Member States’. ¹³

Although these books approach the crisis of constitutional democracy and the need to re-think to its foundational features, from different perspectives and arrive at unique conclusions, they share the assumption that the connection between liberalism and constitutionalism, the classical understanding of the separation of powers, the tensions between politics and rights, and the role of constitutionalism in polarized societies must be reconsidered. In other words, there is an acknowledgment that something is wrong with our constitutional systems and is in need of repair.

So, what's wrong with constitutional democracy?

Of course, it is not my aim to deal comprehensively with such a fundamental question. In this contribution, I would like to reflect on the most pressing epiphenomena of the crisis of constitutional democracy and try to sketch out possible research itineraries in the field of comparative constitutional law and EU law in search of a new balance between the two defining elements of constitutionalism: power and rights.

2. A new model of the separation of powers: From conflict to cooperation

The relationship between the state powers has been at the heart of the crises that constitutionalism has experienced in recent times. Today, both in its vertical dimension (both national and supranational) and in its horizontal dimension, the principle of the separation of powers is subject to countless twists and turns. The principle of the separation of powers is not immutable in its concrete realization. ¹⁴ On the contrary, the specific conception of the separation of powers is closely linked to a particular vision of the state. There is nothing independent or self-executing about the details of a system of separation of powers. It is therefore physiological that a change in the form of the state and the relations between different levels of government is accompanied by a change in the division of powers.

However, what characterizes the separation of powers today is a substantial disequilibrium, which undermines the resilience of constitutionalism itself.

Globally, we can identify two main trends: the strengthening of the role of executives and the growing role of the judiciary, the so-called ‘juristocracy’, ¹⁵ at the expense of legislative assemblies.

In particular, the increasing interference of courts in highly political matters can be read in light of the progressive transformation of parliamentary sovereignty that has marked the need to define a new doctrine of the separation of powers, or at least ‘a new model of the relationship between legislative and judicial power…that incorporates the normative logic of the new constitutionalism’. ¹⁶

Martin Loughlin also describes the extent of this development in his recent monograph Against Constitutionalism, where he states that:

judges have become the arbiters of constitutional meaning. It is true that such power is subject to institutional constraints: courts have no independent power of initiative, they must restrict their decisions to the issue at hand, and they must conform to the conventions of rational argumentation. But judges now have the power to determine the conditions of ‘political right,’ and in so doing they have arrogated the critical role of overseeing the political process. ¹⁷

A substitution that was perhaps inevitable in the face of the continuing crisis of representative democracy, but at the same time problematic because of its transformative scope concerning the relationship between the judiciary and other powers of the state. Even systems that seemed immune to such trends have instead been affected by them: with the Supreme Court's intervention in Miller I ¹⁸ and Miller II ¹⁹ and the recent Rwanda case, ²⁰ the British system now shows traces of the judicialization of politics, ²¹ joining, from this point of view, the global trend of shifting the centre of gravity of the separation of powers towards the judiciary. Notably, Brexit was the watershed moment for the history of the UK Supreme Court, confirming its role as the arbiter of constitutional disputes among constitutional actors and the bedrock of the balance of the UK's constitutional system. ²²

However, while the empowerment of the judiciary has come under scrutiny at the global level, ²³ courts still seem to be better placed to act as constitutional guardians and defenders of minority rights, especially in times of populist breakdown. This role of the courts clashes with another trend in contemporary constitutionalism: the phenomenon of ‘executive aggrandizement’, ²⁴ that is, an expansion of executive power characterized by the introduction of a series of institutional changes that undermine the principle of separation of powers and the system of checks and balances. As Khaitan argues, executive aggrandizement is ‘geared toward a systemic weakening of democracy by ensuring ruling party capture of accountability mechanisms, while retaining a bare minimum procedural commitment to electoral democracy to continue to legitimize the regime’. ²⁵

This is an insidious phenomenon because it unfolds in an incremental and systematic way, so that it may become very difficult to draw the line between legitimate exercise of power and its abuse. Several countries have already experienced or are experiencing such constitutional rot: India, the US, Poland, Hungary, Venezuela and Israel have all been addressed by a crisis of executive accountability and they are all characterized by a high rate of social and political fragmentation and polarization. In this context, independent institutions such as the courts, which can restrain the executive, become the perfect target to be fought and politically captured, perpetuating the narrative of the opposition between the courts and the executives.

Given this scenario, I believe that the most fascinating question for comparative scholars is, today, how to reconcile these contradictory tendencies in a constitutional context.

I will propose three main lines of inquiry for the future of comparative law and institutional arrangements: (a) fostering collaborative theories; (b) acknowledging the end of the triadic separation of powers; and (c) offering tools and procedures aimed at recomposing disagreement through a new understanding of power relations and a revitalization of democratic participation.

3. From fighting for rights to reconciling rights

The struggle for rights is the other most relevant development in contemporary constitutionalism. It is closely intertwined with the transformation of the separation of powers and especially with the empowerment of the judiciary.

On the one hand, there is a growing distrust of the international system of human rights; on the other hand, even at the national level, the system of rights has become a source of tension that, instead of defining the essential features of the polity, risks having a divisive effect. A common feature of these two disruptive trends is the proliferation and hypertrophy of the rights discourse, which has become a kind of civic religion.

Any interest is translated into the language of rights; the multiplication of rights inevitably generates increasing conflicts, in a spiral that threatens to erode a society's bonds of solidarity and commonality. The multiplication of conflicts over rights fosters the empowerment of courts over rights adjudication frustrating the democratic capacity of the people. This is true both at the domestic and at the international or supranational level. In Europe, for example, the European Court of Human Rights has created one of the most advanced systems of protection for fundamental rights: individuals can claim their fundamental rights have been violated by State authorities in front of this international court, redressing in some way the democratic deficit that characterizes the international system. However, the judicial review and the centrality given to rights adjudication and to the convergence toward a common standard has soon turned into a bone of contention and disagreement in many State parties. The counter-reaction to global and transnational actors is particularly evident, although quite paradoxically, in the field of rights protection, the most ‘convergence prone area of constitutional law’. ⁴⁸

The idea that the diffusion of a global human rights discourse could alone help save constitutional democracy was soon revealed to be an illusion. Quite paradoxically, human rights adjudication is a powerful tool for redefining the boundaries of social conflicts, having the potential to exacerbate them and ultimately having a divisive effect: ‘They divide people: between losers and winners; between ordinary people and experts; between individuals and collectivities.’ ⁴⁹ As Sajó vividly argues:

Presenting anything as a right diminishes the power of the idea of rights. Real and imaginary overextension hurts the credibility of human rights. With rights inflation, rights are easily brought into culture wars, which makes them partisan and even trivial. The extension of human rights increases surreal expectations that cannot be satisfied; expectations bring frustration, and frustration breads disillusionment. ⁵⁰

In sum, the focus on rights and their judicialization further marginalizes the political and representative domain and it helps to frame rights discourse in terms of merely individual claims, without any reference to questions of duty and solidarity. Besides this hyper-individualization, global rights discourse also has the potential to cause a ‘flattening of political and cultural specificity, of one's own unique national identity’, ⁵¹ handing a powerful argument to populist campaigns, as we have witnessed particularly in Europe in the Hungarian context. This argument is also quite familiar in post-colonial theories, which consider the human rights regime a colonial heritage that jeopardizes and trumps cultural, linguistic and religious diversities and traditions. ⁵²

Even if we move our focus to the domestic context, human rights have become a heated battleground: abortion, same-sex marriage, surrogacy, affirmative actions, assisted suicide and immigration issues are only some of the most pressing issues that are brought into the arena of conflicts among different rights at stake.

Despite conflict being a natural attitude in a plural society, today constitutional legal systems seem to have lost the power to mediate and to compose the fractures of growing divided and pluralistic societies.

Of course, the judiciary is key in managing the demands of increasingly heterogeneous and plural social bodies; however, the judicial power alone cannot succeed in this delicate endeavour: rights adjudication must be complemented by rights mediation, which leaves space for a process of continuous negotiation and redefinition of the different positions in a diverse society, keeping the character of indeterminacy which is essential for any democratic systems.

Jamal Green has sharply addressed this ultimate tension in the US system when he observes that:

a twenty-first-century court shouldn’t earn its keep by declaring rights but rather by reconciling them. The American experiment rests on the audacious belief that liberalism and pluralism are not only compatible but also mutually constitutive. Until we can turn the language of rights that dominated our politics into a language of reconciliation, the experiment will remain in peril. The last century gave us the constitutional tools to fight political exclusion. In this century, we need the tools to build a politics of pluralism. ⁵³

I think this statement can fit perfectly also in the European context.

4. Taming conflicts in the supranational sphere: the case of the EU

The unravelling tensions at the national level are then also reflected at the supranational level, and this is particularly notable in the EU. The current EU context is characterized by a growing narrative challenging the EU authority, which its critics consider to be an illegitimate constraint over the expression of national sovereignty and constitutional identity. These tensions, which to a certain extent can be considered inherent in multitier systems – need to be analysed in a broader trend of a reemergence of constitutional dissent and conflict between local, national and global actors. As Hirschl argues:

When understood against the backdrop of formidable centripetal forces of political, cultural, and economic globalization, the rise of a new trans-national constitutional order and judicial class and the corresponding decrease in the autonomy of ‘Westphalian’ constitutionalism, as well as an ever-increasing deficit of democratic legitimacy, counter pressures for preserving a given sub-national unit's, region's, or community's unique constitutional legacy, cultural-linguistic heritage, and political voice seem destined to intensify, not decline. ⁵⁴

This is a global phenomenon that has an impact on various international and supranational systems, especially in the field of human rights protection, such as in the inter-American human rights system. However, the degree of economic, legal and, to some extent, ‘constitutional’ integration that characterizes the European Union makes it unique from this point of view.

In particular, these neo-identitarian claims are instrumentalized by populist leaders who exploit the EU's crisis of legitimacy and its shortcomings for the promotion of their nationalist and illiberal agendas. They also, as in the case of Hungary and, until 2023, Poland, play on the cord of constitutional identity by promoting an antagonistic view of the relationship between the EU and its Member States.

In this sense, it can also be argued, paradoxically, that the EU, despite its strong commitment to the values of liberal democracy, contributes, even indirectly, to undermining them at the national level.

The recent past of EU law, in particular, has been characterized by several constitutional conflicts, mainly originating from the judicial interaction between domestic courts and the Court of Justice: here we have witnessed, on the one hand, several cases that express the backlash against the marginalization of the national and local dimension in the name of the centripetal forces of a supranational authority, and, on the other hand, the attempt of the CJEU to affirm the supremacy of EU law over national law and to protect the fundamental values of the EU, recognizing their normative nature and recently adopting the constitutional register of the ‘European identity’.

The most famous case of domestic ‘resistance’ are the Landtová decision (C-399/09), where, in 2012, the Czech Constitutional Court ⁵⁵ (Pl. ÚS 5/12) declared the CJEU's judgment ‘ultra vires’; ⁵⁶ the Ajos ⁵⁷ case, by the Danish Supreme Court, which took the chance to delimit the competences of the EU; and more recently the BVerfG, in the PSPP judgment, ⁵⁸ which has openly challenged the CJEU on the ground of the ultra-vires doctrine, even if at the end the conflict was solved through a dialogical approach; and last but not least the K 3/21 decision ⁵⁹ of the Polish Constitutional Tribunal, which openly challenged the primacy of EU law and its interpretation by the Court of Justice of the European Union, as inconsistent with the 1997 Polish Constitution.

Next to these open cases of conflicts, we have also seen a series of other marked tensions between national constitutional courts and the CJEU, such as the Melloni case, ⁶⁰ the OMT case ⁶¹ and the Taricco ⁶² saga.

The CJEU, on the other side, has built in the last few years a new key line of case law linked to key constitutional values, from the Associação Sindical Dos Juízes Portuguese ⁶³ ruling, LM ⁶⁴ and Repubblika ⁶⁵ to the ‘almost twin’ rulings on the conditionality regulation (C-156/21 and C-157/21). In this case law the CJEU has progressively attributed normative nature to the values of Article 2 TEU, which are ‘an integral part of the very identity of the European Union as a common legal order’, so that ‘the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties’. ⁶⁶

Recognizing the normative value of Article 2 TEU thus leads the Court to define the Union's nature, structural characteristics and ultimate justification, particularly by playing on the delicate strings of identity. The conceptualization of European identity is placed in tension with national identities – so that, in case of conflict, European identity cannot be contradicted or denied by national identities. As has been argued, ⁶⁷ in light of this jurisprudence, there is no room for unconstitutional constitutional identities in the EU and, in case of conflict, mechanisms for the protection of values can be triggered, including conditionality. This is a vision similar to that developed in several constitutional orders and called ‘militant democracy’. ⁶⁸ It is characterized by the development of instruments aimed at protecting the order itself from drifts that could undermine its foundations.

This is an outcome fully consistent with the argumentative path developed by the Court in its case law on Article 19 TEU and culminating in the cases on the conditionality regulation, which nevertheless raises some questions concerning the transformative ⁶⁹ scope of the Union's jurisprudence and the expansive force of EU fundamental values vis-à-vis the policy choices of Member States, which fall outside the Union competences’ perimeter.

Certainly, conflicts like these have also been occurring in proper federal systems; however, the EU is dealing – more than other multilevel legal experiences – with such fundamental and deep tensions, which are not destined to be solved soon. Indeed, the future of the EU ⁷⁰ is today more challenging and uncertain, in light of the accession processes of the Western Balkans countries, Moldova, Georgia and Ukraine, which will further stress the tensions between the EU values and national legal traditions and will probably pave the way for new lines of conflict in the EU.

Conflict appears to be the most recurrent concept in thinking about the EU integration process. However, I believe that conflicts, and in particular constitutional conflicts, are not necessarily negative and perturbative phenomena; on the contrary, they can be seen as the natural consequence of the interplay between national and the supranational legal system and even a vital force for the continuous evolution of the EU.

As Giuseppe Martinico argues, we need to recognize a positive function of conflicts for the development of the structure of the legal order: they ‘contribute to breaking the boundaries of the legal spaces and favour the exchange of legal materials’, (…) the ‘efficient secret of the European Constitution’. ⁷¹

However, conflicts must be channelled into a broader cooperative understanding of the relationship between the EU and the Member States in order to be a positive force for the development of the legal system. This is only apparently an oxymoron: the principle of mutual cooperation is one of the core aspects of the EU as a composite system, enshrined in Article 4.3 TUE. This underlying principle allows for conflicts to arise, as a physiological expression of different spheres of legality, without the whole system being disrupted.

However, cooperation is a bilateral obligation: to remain in the field of judicial interaction, not only do national courts have to interpret national law in the light of EU law, but the CJEU should also adopt a cooperative approach, especially when national identities are at stake. In this sense, it is worth mentioning an interesting proposal for a ‘reverse’ preliminary ruling procedure, put forward by a group of prominent scholars. According to this proposal, the Court should engage in a genuine dialogue when a Member State’s national identity is affected:

Ideally, such dialogue would be realised through the CJEU making a referral to the national court that is competent to render a binding decision on the interpretation of the national constitution. This would allow the CJEU and the national constitutional court to reach a conclusion jointly, but still independently in a sense that they both adopt a binding decision. ⁷²

Adopting such a cooperative system is not only in line with the nature of the EU, but ‘it would very likely contribute to a higher level of acceptance and the confidence in the European structures and institutions, deprive adversaries of European integration of an important argument and integration as such would gain momentum.’ ⁷³ In my opinion, this could be a very promising path to follow in order to promote a real co-operation and to channel the conflicts within the EU.

More generally, reflecting on the future of the EU, we must ask whether and how the EU constitutional order will be able to keep it ‘effectively secret’ and to find out ‘how to close the value gap to meet the demands of a progressing integration’. ⁷⁴

In other words, will it be able to manage the existing tensions and the rising ones without falling apart? How far can the integration of the EU continue to go in a constitutional direction? And through which constitutional instruments and (new) theories?

In the coming years, these will be the most pressing questions for scholars of EU and comparative law.

5. Conclusions

In all areas of constitutional law worldwide, we are facing a unique moment of radical change.

In this contribution, I have outlined what are, in my view, the main challenges for the future of comparative constitutional law in light of the growing polarization and antagonistic trends that have an impact on the exercise of power, the protection of rights and on democratic participation at all levels.

The rise of authoritarian populism, the tensions between courts and executives and the fight for rights leave no or little space for dialogue, cooperation and compromise, eroding the foundation of the model of liberal constitutionalism.

Are we witnessing the demise of the liberal model in favour of other models, hybrids of constitutionalism and other forms of organization of power and the relationship between freedom and authority? Can this process be halted or reversed? And if we look at the supranational level, will the EU be able to protect constitutional democracy, or will the process trigger further polarization and backlash? Will be the EU able to advance the integration on a constitutional level?

As I expected, today's picture is too uncertain for any attempt at an answer.

What is certain is that constitutionalism today is no longer capable of managing the multiple conflicts that characterize it. In both the national and the supranational context, we are dealing with what the political scientist Mounk has called the ‘identity trap’. ⁷⁵ That is the juxtaposition of different identities – social, cultural, ideological – that ultimately exclude and oppose each other.

On the contrary, liberal constitutionalism at the national and supranational level should be directed to the project of ‘maintaining the conditions of openness within which persons and groups can have the conditions to exercise their moral agency, room to develop new social initiatives generative of greater inclusion, and the space to dedicate themselves to the good of one another in community’. ⁷⁶ In other words, it should be oriented to create a ‘polity’.

In this light, I think that we need to re-discover and emphasize the relational (and not merely conflictual) nature of constitutional law, both concerning the relationship between institutions (courts, executives and legislators) and the role of civil society through democratic participation.

This does not mean that conflict should be eradicated from public discourse: I fully recognize that dissent and conflict are essential elements of the democratic experiment and that denying conflict can actually produce ‘authoritarian results as it may be inspired by the belief in a universal and right order’. ⁷⁷

What I am claiming, instead, is that we, as legal scholars, need to look for a new equilibrium of governing conflict in a way that ‘it finds its expression in agonistic terms’ ⁷⁸ (and not ‘antagonistic’) to permit continuous and open deliberation on what is right, what is needed, and what we are as a political community, from the local to the national and the supranational level.