The Practice and Theory of Comparative Constitutionalism
As a field of empirical academic research and legal practice, comparative constitutionalism suffers many of the methodological challenges that have encumbered the fields of comparative law and politics. Apart from the more obvious difficulties of language and the different legal traditions that plague the comparative law project, the sociological and economic contexts as well as each country's particular political history require attention when one is studying the origins and meanings of particular constitutional forms. More recently, the increasing comparative jurisprudence of constitutional and supreme courts in a number of countries has broadened the scope of comparative constitutional law and raised questions about the theory and practice of constitutionalism in the context of a globalizing world. On the one hand, there is a growing attempt to formulate constitutional theories to throw light on the “increasingly cosmopolitan character of constitutional interpretation” (Choudhry, 1999); on the other hand, there is a call for Anglo-American lawyers to recognize the need for a broader legal theory of the state or civil law type Staatslehre (Dyzenhaus, 1998) as an essential step toward the formulation of an adequate theory of the relationship between law and political power. It is this relationship that is at the heart of the idea of constitutionalism and the object of research and practice in the growing field of comparative constitutionalism.
Various legal systems around the world approach the range of law and aging issues in very different ways. In recent years there has been a growing interest in studying and comparing these different legal approaches by using comparative law methodologies. Comparative law can be a powerful tool to both better understand one's own legal system and values while realizing that other legal options do exist.
There are many recent examples of comparative elder law research. For example, a comparative legal study in the field of elder guardianship revealed totally different conceptual approaches to this legal institution. On the one hand, one can find a ‘North American’ approach to adult guardianship, which is focused on ‘substitute decision-making’ models; while on the other hand, a more European/Continental approach to adult guardianship is focused on assisted/shared decision-making models (Doron, 2002).
South Asia (comprising the present states of India, Pakistan, Afghanistan, Nepal, Bhutan, Bangladesh, Sri Lanka, and the Maldives) is marked by the diversity of its legal traditions. The founders of comparative law, when dividing the globe into different legal systems, describe South Asian legal culture as Hindu law. However, South Asia is the site for Hindu, Muslim, Buddhist, tribal, British colonial and postcolonial legal regimes, along with the presence of Jain, Zoroastrian, French, Portuguese, and Roman-Dutch legal systems. Unique to South Asia is the fact that while these legal traditions appeared at different points of time, none was able to supplant the others completely and had to evolve a relationship of coexistence.
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