Presented by: Yassir Malik

2011-02-0156

“COMPARITIVE CONSTITUIONAL LAW”

Maryam Khan

Response Paper: Constitutional Culture, Continuities and

Divergence

The outlining purpose of this paper which primarily revolves around the
prevailing concept in the writings of James Q. Whitman and Ariel Bendor is to
understand the development of a country’s constitution through various historical, socio-
economical, epistemological, religious and logical dimensions. The prime focus of the
readings is transatlantic clash of two of the world’s oldest and glorified regions. It is
imperative to understand and take into account the series of historical events that have
placed these countries in their current position and the stance they take on various
matters. This organic building of their constitutions allows their systems to work with
minimal hick-ups even though they are ideologically worlds apart.
The divergence between the American and what one may call the Continental
European constitutional frameworks starts from the very basic notion of privacy. These
two western cultures have a very different perspective of what they deem to be a private
concern and hence their rights attached to it. To put it in a nutshell, the notion of privacy
for Americans simply means Liberty and for Europeans it’s the protection of one’s
dignity. Why is it that for the Europeans it is so important and vital to control their public
image and for the Americans it’s far more important to preserve the sanctity of the home?
Why is it that Europeans can accept the government’s interference in deciding their
children’s names while the Americans will go bizarre over the slightest hint of
government intervention? Such ideas and intuitions are formulated by our surroundings,
and the prevailing legal and social values, a concept Whitman refers to as ‘juridified’. It
is however important to understand that these differences and values are not absolute but
relative. The difference in these values across the Atlantic are rooted in an old and deep
traditional difference.

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 It is more than merely evident that Continental Europe is constantly drawn
towards problems regarding Public dignity while Americans ponder over questions of
state depredations. One can understand this emphasis of continental law on honor by
studying their history. It is often suggested that it is a product of a reaction against
fascism which points in the direction of the Nazis. However it is essential to realize that
the history of this culture dates far back in time. Continental Europe as we all know
shares a long history of feudalism, aristocratic and monarchical societies. America on the
other hand, didn’t experience this sort of a class divided time period. This European era
hence resulted in a certain class of people having a very high status and hence an elevated
protection of honor and dignity. This prolonged snubbing of the lower classes resulted in
a slow yet maturing revolt which resulted in this notion of honor and dignity being
offered to every member of the nation and this right being greatly appreciated and
treasured. Whitman describes this phenomenon as ‘leveling up’. All this resulted in the
acts such as the laws of insult, the continental etiquettes, hate speech etc. It would be
naïve to believe that American thinkers don’t find these laws on privacy extremely
sophisticated. However it’s not a matter of mere opinion and logic but of that what is
suitable and organic for a certain society. For Europe, this notion of privacy is what
represents them.
The divide between these two regions increases further when it comes to the
conception and values of free speech. For Americans, it’s the liberty that they hold
closest to their hearts and whenever there would be a question of free speech against
public honor, freedom prevails. The case of Oliver Sipple is a prime example where
Sipple, who was a homosexual, wanted to keep his sexuality out of the media but was
refused this right over freedom of expression. The case finally resulted in him,
committing suicide. A similar case in Europe would have a very contrasting outcome and
the reason is precisely the fact that honor and dignity in their culture needs to be upheld
even if it results in taking away the freedom of speech. Its evident how historical events
has defined the way their law has developed and molded their legal structures in
accordance with their values.
But why is it that the Americans have such a variant concept of privacy than that
of the Europeans? Why is it that for them the sanctity of their homes is far more

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important that their public image? Why is it that for an American, state is the prime
enemy of his privacy? It is essential to look at their history to understand what led to
these perceptions. It can be traced back to the eighteenth century and primarily the Bill of
Rights. The highly emphasized Fourth Amendment outlines the right of privacy as the
right against ‘search and seizures’. This concept of privacy matured from there onwards
with cases such as Boyd vs. United States which defined and aggressively declared the
‘sanctity of an American home’ as a fundamental right to ensure liberty and freedom.
This led to the expansion of the Fourth Amendment in order to facilitate the ‘pursuit of
happiness’ in cases such as Schmerber v. California where it was described as a right of
“privacy against unwarranted state intrusion”. This by no means implies that the concept
of privacy stops at state intrusion into one’s home but rather goes on to encompass any
forms of state intrusion into one’s private decision making, be it the right to keep firearms
or choose your children’s names.
This transatlantic clash of values regarding privacy, as we saw played an
important role in developing the norms and laws of the regions but beyond that these
vales play an integral part in the formation and development of the political and legal
structures of these regions. This divergence is evident when one looks at the difference in
governmental structures and separation of powers between these two sides. Why is it that
in the United Kingdom the judiciary has a very limited role in the constitutional
development where as on the contrary, United States has a very strong form of judicial
review and in fact prides itself to be the home of judicial review? Why is it that there is a
prevailing maxim throughout U.K that the British Parliament can do no wrong and a
widespread distrust in the Government in the United States? All these questions take one
back to the same historical backgrounds of these two highly celebrated nations and the
answer simply lies in the element of trust. Britain prides itself as the creators of true
representative government vies-a-vi democracy. Their history of feudalism and
monarchies as discussed earlier developed this ethos of trust into their organically formed
parliamentary system and this very trust reflects in the notion that the parliament can do
no wrong which as a result eliminated the requirement of a judicial power to overthrow
parliamentary decisions i.e. judicial review.

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 However on the contrary, as mentioned earlier as well, the social and political
environment in the United States has been far from trustworthy. The idea of liberty and
personal privacy has always been at the core of American hearts which has resulted in
looking at the State with profound suspicion, as a prime enemy of their privacy which
leads to a relationship of distrust. From its very beginning, America has been skeptical of
state powers and hence very much prone to the concept of ‘separation of powers’.
Consequently the American system of government has developed a very sophisticated
system of checks and balances over all three parts of the Government. The trichotomy of
powers is solved through the system of judicial review, giving the judiciary directed
control equally over the legislative and administrative bodies.
From comparative law’s point of view, the study and comparison of this
transatlantic clash is of great significance. It allows us to understand how these two
regions have such distinct ideas of privacy, governance and freedom and how they can be
traced back to their historical origins. It is necessary to take into account the fact that
these differences are not absolute and only relative. However the very fact that these two
systems have emerged as world-leaders and successful economies raises the question as
to whether there is any right way of governance, any right form of ideas? It is safe to say
that there is no such distinction but the question posed to us is greater than that. The
conclusion one gets out of this comparison is that no matter what form of legal or
political structure you have and regardless of what kind of jurisprudential practices a
nation follows, it is imperative that those ideas reflect their very own history and hence
be a legitimate authority in the eye’s of its people.