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Compensatory Constitutionalism: A Comparative Perspective, NCCR Working Paper No 2006/13, July 2006
Abstract Law scholars argue that there is an emerging compensatory constitutionalism. This denotes a set of compatible supranational and national institutions that fulfil functions hitherto fulfilled by national constitutions. Thus, deconstitutionalisation at the national level, which, as this strand of literature argues, has been brought about by forces such as globalisation, is compensated for. We test this hypothesis in a ‘most different systems design’. We distinguish between procedural and substantive constitutionalism. Procedural or formal constitutionalisation refers to the emergence of legal constitutional rules. Substantive constitutionalisation refers to the actual function of constitutions in protecting the individual. We show that there is considerable procedural but little substantive constitutionalisation. Further we argue that compensatory constitutionalism has to include elements of positive and negative integration. We do not find strong empirical evidence for such an enlarged compensatory constitutionalism. Hence there is a global constitutionalisation, but it is mostly formal and uneven in nature. |
