Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation

Abstract

African Bill of Rights, 6 the Israeli Basic Laws, 7 the New Zealand Bill of Rights,' and the Hong Kong Bill of Rights. 9Moreover, Jon Elster, commenting on the Eastern European experience with constitution-building, has observed that "[iln constitutional debates, one invariably finds a large number of references to other constitutions" not only "as models to be imitated," but also "as disasters to be avoided, or simply as evidence for certain views about human nature."" 0The globalization of the practice of modern constitutionalism generally, and the use of comparative jurisprudence in particular, raise difficult theoretical questions because they stand at odds with one of the dominant understandings of constitutionalism: that the constitution of a nation emerges from, embodies, and aspires to sustain or respond to that nation's particular history and political traditions.As Jurgen Habermas has explained, the citizens of a nation often use constitutional discourse as a means to "clarify the way they want to understand themselves as citizens of a specific republic, as inhabitants of a specific region, as heirs to a specific culture, which traditions they want to perpetuate and which they want to discontinue, [and] how they want to deal with their history."'"Indeed, for 6.