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Advanced Introduction to Comparative Constitutional Law: Second Edition

Mark Tushnet

Mark Tushnet, a world-renowned scholar of constitutional law, has excelled in extending and revising his essential introduction to comparative constitutional law.
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Conclusion

Mark Tushnet

Extract

addresses two of these issues.

Consider, for example, the emergence of a new generation of constitutionalized rights. Initially these new rights might appear to be a diverse group, encompassing rights of linguistic minorities, of indigenous peoples, of cultural minorities and rights, both of and in, the environment. Yet, understanding them leads us to examine some common themes. At the level of concrete implementation of these rights through institutional forms, each one requires that we identify someone or some group that is entitled – has standing – to assert the rights. Yet doing so almost inevitably fails to be fully responsive to important dynamic aspects of the underlying right or interest.

Undoubtedly because of their disciplinary commitments, legal scholars of comparative constitutional law typically assume that the object of their study is a normatively weighted one – liberal constitutionalism. Constitutions in authoritarian states are rarely examined, except as negative examples, because such constitutions do not serve simultaneously to allocate and limit the exercise of public power: Formal allocations of power in such constitutions may only accidentally correspond to the reality of power allocation and, by definition, public power in authoritarian states is formally unlimited.

Liberal constitutions are treated as a category of interest in two ways. Sometimes scholars posit an idealized liberal constitution and identify ways in which specific national constitutions fall short of realizing the ideal. Sometimes these studies are exercises in political theory, with the major analytical work done in specifying the idealized liberal constitution. At...

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