Constitutionalism beyond compare: Martin Loughlin’s inadvertent case for comparative constitutional studies

Abstract

This review essay considers two objections to which Martin Loughlin’s jeremiad Against Constitutionalism might appear to be vulnerable: first, that his argument is entirely stipulative in the sense that all the work is done by a non-standard definition of his central concept and, second that, even if this is not the case, he has not done enough to substantiate his claims about constitutionalism’s deleterious effects. The answer given is that the first objection largely fails but that the second succeeds. Loughlin’s definition of ‘constitutionalism’ as the ideology that has arisen in support of the global spread of written constitutions on the American model is thus somewhat non-standard. In its ordinary usage, ‘constitutionalism’ is a polysemic concept that expresses an aspirational ideal that is deliberately underspecified and contested. There is no uniform ideology of constitutionalism, but a wide variety of national traditions. Nevertheless, Loughlin’s account does capture certain common features of the legitimating claims made by written constitutions on the American model and his argument is to that extent not entirely stipulative. To enlist us in his project of opposing constitutionalism, however, Loughlin needed to conduct a much more thorough assessment of the deleterious effects he alleges have accompanied the spread of constitutionalism. The post-war adaptations of the American model in Germany, India and South Africa departed from it in significant ways. Not all the problems associated with the American model can be attributed to them and, conversely, not all the problems constitutionalism is encountering in these three countries can be attributed to the American model. In ignoring these differences, Loughlin’s argument too often relies on uninterrogated normative priors and unsubstantiated causal claims. His book in that sense makes an elegant, unintended case for the need for comparative constitutional studies as a field.