Constitutional Law

Tschentscher, Axel (2017). Constitutional Law. In: Thompson, William R. (ed.) Oxford Research Encyclopedia of Politics. Oxford University Press 10.1093/acrefore/9780190228637.013.2

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Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system.

Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.

Item Type:	Book Section (Encyclopedia Article)
Division/Institute:	02 Faculty of Law > Department of Public Law > Institute of Public Law 02 Faculty of Law > Department of Legal Theory and History of Law > Legal and Political Theory
UniBE Contributor:	Tschentscher, Axel
Subjects:	300 Social sciences, sociology & anthropology > 340 Law 300 Social sciences, sociology & anthropology > 320 Political science
Publisher:	Oxford University Press
Language:	English
Submitter:	Axel Tschentscher Emmenegger
Date Deposited:	27 Sep 2018 13:13
Last Modified:	05 Dec 2022 15:18
Publisher DOI:	10.1093/acrefore/9780190228637.013.2
Additional Information:	Online-Publikation
URI:	https://boris.unibe.ch/id/eprint/120031