Project Description

This project is investigating how courts are approaching the task of constitutional interpretation in the current period, which Sam Huntington labelled as the Third Wave of Constitutionalism (Samuel P Huntington, The Clash of Civilizations and the Remaking of World Order (Simon and Schuster 2011)). More than 150 countries now confer the power of judicial or constitutional review on apex courts, empowering them to declare legislation that is inconsistent with the constitution to be invalid. Until recently, most comparative constitutional law scholarship continued to focus on the established democracies of the global north, but that has begun to change.

One of the publications that will result from this project is an edited collection, the Elgar Research Handbook on Constitutional Interpretation, edited by Sujit Choudhry, Carlos Bernal and Catherine O’Regan (Elgar, 2025, forthcoming).  The Research Handbook contains chapters covering key themes including chapters on living constitutionalism (Aileen Kavanagh), the approach to unconstitutional constitutional amendments (Yaniv Roznai and Rehan Abeyratne), the interpretation of directive principles (Lael Weis), the concept of aversive constitutionalism (Tarun Khaitan), constitutions and peace-making (Ruti Teitel) and social transformation as an interpretive principle (Gautam Bhatia). It also assesses the use of international law in the interpretation of domestic constitutions, including the relevance of the three regional human rights systems and international human rights law, as well as international criminal law, international refugee law and international economic law. The collection also contains eleven country studies of constitutional interpretation by sitting or retired judges.

Another focus of this project is to analyse and assess the emerging jurisprudence in key jurisdictions in the global south. An example here is Catherine O’Regan’s chapter in a festschrift to be published in honour of the leading American scholar, Mark Tushnet, edited by Vicki Jackson and Madhav Khosla, Redefining Comparative Constitutional Law: Essays for Mark Tushnet (2024, Oxford University Press). Kate’s chapter, “The political paradox of African constitutionalism revisited: Kenya’s BBI case”, examines this controversial and seminal decision of the Kenyan courts against the backdrop of post-colonial Kenyan constitutional history.