Here on the IDP Blog, we bring you applied articles on the most relevant topics in legal knowledge.

In the field of Constitutional Law, considering the domestic context, we have already worked on, for example:

• Methods of constitutional interpretation, including a case study;
• Supervening unconstitutionality;
• Constitutional review; is
• Constitutional remedies.

On the international stage, we have developed several themes, including:

• Status hierarchical Human Rights in the Brazilian legal system;
• Universal, African, European systems e Inter-American of Human Rights; and
• Cases in which Brazil was brought before the Inter-American System of Human Rights.

Regarding foreign law, we have already examined the Marbury v. Madison case in the United States as a case study.

Here we will discuss specifically the possibility of comparing the legal systems of different countries or regions, known as Comparative Law.

Come on!

What is Comparative Law?

The goal of Comparative Law is to identify similarities and differences between the systems being studied.

In this way, legal professionals and practitioners can gain insights into how other legal systems address specific legal issues.

It is also possible to understand the various approaches used in different laws, regulations, procedures, or institutions to solve legal problems.

Comparative Law can encompass a wide range of areas, such as Constitutional Law, Civil Law, Criminal Law, and Administrative Law.

Through this method, legal scholars can make comparisons between legal systems based on different criteria, such as:

• The sources of law;
• The way contracts are formed and executed;
• Individual rights and guarantees;
• The criminal laws of different countries, including the definition of crimes, the penalties applied, and the criminal justice systems;
• The laws of contract, property, family and inheritance; and
• The way in which control over public administration is exercised in different countries.

But what about in the field of Constitutional Law? How can I apply Comparative Law?

Understanding Comparative Constitutional Law Better: An Analysis of the Work Published by IDP

Comparative Constitutional Law focuses on the analysis and comparison of the Constitutions and constitutional systems of different countries.

Among the similarities and differences examined, we can highlight:

• Constitutional provisions;
• Governmental structures;
• The fundamental principles adopted in different legal systems;
• The organization and functioning of governments; and
• The protection of individual rights and freedoms and the mechanisms for controlling and balancing power. 

By comparing Constitutions, scholars of Comparative Constitutional Law can examine how different countries address complex constitutional issues.

Among these, we can highlight the balance between individual rights and collective interests; the relations between the Executive, Legislative and Judicial branches; and the protection of the human and fundamental rights of minorities and vulnerable populations.

Insights gained from Comparative Constitutional Law can have practical implications.

We can mention the possibility of comparing the legislative processes adopted in different constitutional systems. This includes analyzing the role of the Legislative Branch, the procedures for drafting and approving laws, as well as the relationship between the Legislative and Executive branches in the system of checks and balances.

Also through Comparative Constitutional Law, countries can learn from each other and adopt more effective approaches to strengthen the rule of law and protect fundamental rights, such as freedom of expression, freedom of religion, the right to privacy, equality, and non-discrimination.

To better understand how this study can be applied, let's analyze the work Comparative Constitutional Law.

It was written by undergraduate law students and students specializing in Constitutional Law at IDP, under the coordination of Professor Anna Carolina Finageiv and Professor José dos Santos Carvalho Filho.

The e-book was divided into sections analyzing the following fundamental rights:

• The right to life and human dignity, with 4 articles;
• Right to freedom, with 3 articles:
• Right to health and culture, with 2 articles; and
• Constitutional guarantees in the face of the economic and financial crisis, with 2 articles.

The article “The regulation of same-sex unions by judicial decision: a comparative analysis between Brazil and the United States of America” proposes a parallel between the process of regulating same-sex unions in Brazil and the United States, given that both occurred through judicial decisions of their respective Supreme Courts.

After analyzing the decisions that guaranteed the rights studied and the role played by the US and Brazilian Constitutional Courts, the author draws a parallel between these two judicial bodies and their constitutional jurisdiction.

It concludes that the courts act in a counter-majoritarian way to protect fundamental rights.

In “Religious Freedom: A Comparative Analysis of Decisions by the U.S. Supreme Court and the German Federal Constitutional Court,” the author examines the normative aspects of the right to religious freedom in the Constitutions of Germany ( civil law ) and the United States ( common law ).

The study shows that the Courts formed their convictions by charting their own course.

distinct and sometimes antagonistic – even more so considering that they do not follow the same legal model.

One of the peculiarities highlighted in the study is the Court's immersion in the specific case: while the American Court adopted a more historical perspective, the German Court approached the controversy by analyzing the specific circumstances of the case.

Finally, we mention the article "Legislation and jurisprudence of the crisis in Brazil and

"in Portugal." The author compared Brazilian and Portuguese constitutional and sub-constitutional legislation regarding fiscal crises.

According to their findings, Brazil possesses strong and secure constitutional and sub-constitutional mechanisms to recover its fiscal capacity and honor its legally established obligations.

Portugal, on the other hand, needed decisions from its Constitutional Court to ensure that its government's measures were compatible with its Constitution, since it has no legal provision on the subject.

One more step: the IDP Academic Master's Program

Shall we delve even deeper?

The IDP's Academic Master's Program in Law has a research line focused on "State, Constitution, and Democracy." One of the topics covered is the critical perspective of Comparative Constitutional Law.

One of the dissertations produced was "Judicial Dialogues between Constitutional Courts ." The now-master analyzed the activity of international influences between courts responsible for safeguarding the constitutional order, through jurisprudential exchange, as an instrument for improving the constitutional jurisdiction of countries.

Another dissertation that addressed the topic was "Law and Backlash ," where the student presented case studies of social reactions against decisions by judges and courts in various countries.

One of the great advantages of IDP for those interested in Comparative Constitutional Law is the wide range of opportunities for international mobility. 

The goal is for graduate students to have unique academic, professional, and personal experiences.

One of the possibilities for exchanging experiences with students around the globe occurs in relation to Comparative Law, where students can better understand other legal systems and how connections can be established with the Brazilian system.

Among the partner universities, we highlight:

• American University, United States;
• George Mason University, United States;
• Rome Tre Università Degli Studi, Italy;
• The University of Oklahoma, United States; 
• National University of Córdoba, Argentina.
• University of Lisbon, Portugal;
• University of Macau, China;
• University of Salamanca, Spain;
• Nova University of Lisbon, Portugal; and
• University of Cape Town, South Africa;

Internationalization provides exposure to other ways of understanding law and diverse means of resolving disputes. This experience also offers contact with the many historical, social, economic, and cultural factors that influence the development of law in different countries.

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References

FINAGEIV, Anna Carolina; CARVALHO FILHO, José dos Santos. (Eds.) Comparative Constitutional Law . Brasília: IDP, 2020.