
Contents
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I. Comparative Constitutional Law and Foreign Relations Law I. Comparative Constitutional Law and Foreign Relations Law
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II. A National Constitutions Lens on Foreign Relations Law: What Do They Say? II. A National Constitutions Lens on Foreign Relations Law: What Do They Say?
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International Signaling Function International Signaling Function
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Treaty-Making Treaty-Making
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War-Making War-Making
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Diffusion and Borrowing Diffusion and Borrowing
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Customary International Law Customary International Law
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Additional Trends Additional Trends
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Variations in Foreign Relations Law Variations in Foreign Relations Law
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III. The Possibility of Substitutes, Complements, and Duplicates III. The Possibility of Substitutes, Complements, and Duplicates
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IV. Conclusion IV. Conclusion
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4 Comparative Foreign Relations Law: A National Constitutions Perspective
Get accessTom Ginsburg is the Leo Spitz Distinguished Service Professor of International Law at the University of Chicago Law School. His research focuses on comparative and international law from an interdisciplinary perspective. He holds BA, JD, and PhD degrees from the University of California at Berkeley. His latest book is Democracies and International Law (2021), winner of two best book prizes, and his prior books include How to Save a Constitutional Democracy (2018), written with Aziz Z. Huq, which won the best book award from the International Society of Constitutional Law; Judicial Review in New Democracies (2003), which won the C. Herman Pritchett Award from the American Political Science Association; The Endurance of National Constitutions (with Zachary Elkins and James Melton, 2009), which also won a best book prize from APSA; and Judicial Reputation (with Nuno Garoupa, 2015). He currently co-directs the Comparative Constitutions Project, an effort funded by the National Science Foundation to gather and analyze the constitutions of all independent nation-states since 1789.
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Published:13 June 2019
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Abstract
This chapter considers how comparative foreign relations law might draw on the comparative study of national constitutions, an increasingly large and vital field, and sets out an agenda for future work in the area. It provides some basic data from a comparative examination of formal constitutional provisions relevant to foreign relations. In doing so, it argues that a “foreign relations lens” helps elucidate an underappreciated core purpose of these foundational texts. That is, one of the central functions of national constitutions is to structure international relations. The chapter next turns to normative considerations, showing how the shifting boundaries of constitutional design with regard to foreign relations serve to allocate lawmaking authority. There is a potential for complementarity between international and domestic regulation of some problems, but also the potential that international and domestic norms serve as substitutes for each other. An optimal constitutional design of foreign relations law would take these considerations into account.
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