Comparative constitutional law is an intellectual embarrassment. Descriptive studies abound: How well do they protect freedom of speech in Israel compared to Turkey? But when we move beyond the description of one or another constitutional doctrine, there is a vacuum: How to characterize the varieties of modern constitutionalism? Which models best express the constitutional experience of which countries?
A comparison with the private law is instructive: scholars here do not content themselves with the comparison of particular doctrines. They regularly concern themselves with entire systems of ideas as they trace the influence of complex entities like the Code Napoleon or the "common law." In contrast, public lawyers lack models that elaborate systematic differences between modern demoratic constitutionalisms in ways that help them understand the very different roles that courts play in different modern systems. My first aim will be to sketch three models that may help fill this gap - taking special care to define the role of the courts in each of the three models.
Date of Authorship for this Version
Ackerman, Bruce, "The Lost Opportunity" (1991). Faculty Scholarship Series. Paper 137.