Desperately Seeking Europe: On Comparative Methodology and the Conception of Rights

Abstract

This brief essay reviews "European and U.S. Constitutionalism" (Georg Nolte, ed., Cambridge University Press, 2005), a volume that seeks to distil what constitutionalism across Europe has in common and how that differs from constitutionalism in the United States.

After presenting the various contributions to the book, the essay takes a step back to examine the nature of comparative constitutionalism itself. The essay proposes that we understand comparative legal inquiry as coming in three different forms: the study of foreign law, first order comparativism, and complex critical comparativism. After describing the method and virtues of each, the essay situates the various contributions within these types.

Next, the essay engages the substance of the book, which is the comparative examination of rights. The essay suggests that the book, which contains a wealth of insightful contributions, nevertheless seems to neglect two important differences in rights analysis in the United States and Europe: first, the difference between a motivational and a non-motivational conception of rights; and second, the difference between an abstract versus an institutional conception of rights.

The essay concludes by noting that even these differences ultimately do not render European constitutionalism distinct, but suggest, instead, the continued exceptionalism of constitutionalism in the United States.

Keywords: Europe, European Integration, Constitutional Law, Rights, Comparative Law, Constitutionalism