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.

A key publication in this project is an edited collection, Constitutional Interpretation (Elgar, 2025 (forthcoming)) edited by Sujit Choudhry, Catherine O’Regan and Carlos Pulido-Bernal. 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.

Other publications in this project include Catherine O’Regan Courts and the Body Politic (Cambridge 2025), a chapter by O’Regan in the festschrift for leading American constitutional scholar, Mark Tushnet, edited by Vicki Jackson and Madhav Khosla, Redefining Comparative Constitutional Law: Essays for Mark Tushnet (2024, Oxford). Her 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. Most recently, Kate delivered a keynote address in Christchurch, New Zealand, at a conference marking the 35th Anniversary of the New Zealand Bill of Rights Act with the title, “Assessing the global practice of rights adjudication in a period of democratic recession”. It, along with other papers at the conference, will be published in a special volume of the Canterbury Law Review.