The Role of Constitutional “Terroir”

The common refrain of constitutional comparativists is that foreign experiences offer persuasive authority that may serve as a useful guide to judges in their constitutional decision-making. The idea is, as Justice Breyer has argued, that since all modern democracies are facing the same basic problems and are searching for the same basic answers, why not examine how other constitutional courts have addressed the problem?

Jeremy Waldron analogizes the process of citation to foreign authority as akin to scientific investigation, in which scientific findings represent a repository of enormous value that would be unthinkable for any scientific researcher to ignore. He writes that “the law of nations is available to lawmakers and judges as an established body of legal insight, reminding them that their particular problem has been confronted before and that they, like scientists, should try to think it through in the company of those who have already dealt with it.” Waldron argues that “legal science” relies “on the idea that solutions to certain kinds of problems in the law might get established in the way that scientific theories are established.”

But the scientific method is a poor analogy for the project of global constitutionalism. Such an analogy rests on false assumptions about constitutional decision-making. It assumes that one can engage in shallow comparisons without contextualizing in light of a country’s text, structure, history, precedent, and national experience. A scientific researcher offers a theoretical hypothesis, tests that hypothesis in the laboratory through experimental study, controls all variables that might alter the results, and reaches a scientific conclusion based on repeated, falsifiable tests in a controlled environment.

The constitutional jurist does nothing of the kind in interpreting constitutional norms. The better analogy is not the sterile laboratory of the scientist, but rather the earthy vineyard of the oenologist. Every winemaker starts with the same basic ingredients, utilizes the same basic techniques, and enlists the same chemical reactions of fermentation—all in pursuit of the perfect wine for that environment. But the winemaker knows all too well that local conditions such as geology, climate and culture—what the French call terroir—dramatically shape the expression and personality of the wine. The idea of terroir is, as Robert Parker describes it, that “a particular piece of ground and its contribution to what is grown there give its product a character distinctive and apart from that same product grown on different soils and slopes.” As two wine experts recently put it:

There is no question that many constitutional norms reflect universal values that require and deserve recognition. And perhaps the universality of these norms is part of a country’s “macroclimate” that marginally influences the cultivation of the norms. But that affirmation does not negate the reality that constitutional norms are given their distinctive personality in different cultures based on the local conditions of that country. The results are greatly influenced, if you will, by a country’s constitutional terroir.

As modern democracies take markedly different approaches to constitutional guarantees, one cannot help but appreciate the impact that local conditions have had on the end product. In each region, constitutional norms are expressed in a manner that reflects the distinctive characteristics of the land. The results, while different from one advanced democracy to another, are all nonetheless pleasing to the palate.

It is worth noting, of course, that great wines don’t come from just anywhere, and the same is true of constitutional guarantees. Countries struggling to attain the status of modern democracies contribute their own distinctive characteristics in the cultivation of constitutional norms. The quality of such norms in those regions suffers as a result of that country’s poor constitutional terroir.