The Invisible Constitution in Comparative Perspective

Rosalind Dixon and Adrienne Stone

those ideas are now often mediated in Ireland via express constitutional com-

mitments, such as commitments to dignity and justice. This, Carolan notes, 

also allows the natural law dimension of the Irish Constitution to adapt to an 

increasingly diverse and secular society, in ways that allow it to serve as a site of 

identification both for religious Catholics or natural law adherents and those 

committed to more plural religious traditions.

Han Zhai, in exploring the relationship between the visible and invisible 

constitution in China, suggests that de facto forms of decentralisation create 

‘effective local laboratories’ for governmental experimentation which contrib-

ute to a more legitimate form of government in China than is often suggested 

by comparative constitutional studies that focus solely on the formal, visible 

aspects of the 1982 Chinese Constitution.

1.2.1.2.  The Content and Contours of the Invisible Constitution

Another set of contributions focus more directly on the content and develop-

ment of the invisible constitution in various constitutional systems and what 

that trajectory might tell us about the nature of the invisible constitution more 

generally. Iddo Porat and Caitlin Goss, for instance, identify ‘human dignity’ 

as an important express constitutional norm or commitment that has served 

as a locus for the incorporation of extra-textual constitutional ideas or values 

under the Israeli Basic Law and various ‘final’ constitutions that succeed ear-

lier, ‘interim’ constitutional documents. Carolan likewise notes how express 

constitutional values such as ‘dignity’, ‘autonomy’ and ‘justice’ have provided 

a way in which natural law influences – as a form of ‘shadow’ or invisible 

constitutional influence – have gradually been positivized under the Irish 

Constitution. Butt holds up the ‘the rule of law’ (or in Indonesia, the idea of 

‘Negara Hokum’) as another constitutional ideal which, at least if sufficiently 

expressed in the text of the constitution, can provide a basis for a range of con-

stitutional implications (such as those relating to minimum requirements of 

due process and a fair trial). Johannes Chan, in writing on Hong Kong’s consti-

tutional jurisprudence, likewise notes a principle of non-arbitrary government 

or the ‘integrity of the common law system’ is an important extra-textual prin-

ciple guiding the approach of the Hong Kong Court of Final Appeal (CFA) 

to the scope of its duty to refer questions of interpretation to the NPCSC.

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26 

For the link between the rule of law notions of non-arbitrary government and the rule of law, 

see e.g., Martin Krygier, ‘Four Puzzles about the Rule of Law: Why, What, Where? And Who 

Cares?’ in James E. Fleming (ed.), Getting to the Rule of Law: NOMOS L (New York, NY: 

New York University Press, 2011) 64–106; Fallon, Jr., Supra note 3.

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The Invisible Constitution in Comparative Perspective 

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Tew, in describing Malaysian constitutional experience, points to the long-

standing contest in Malaysia between liberal-secular and Islamic constitutional 

ideas and the clear ‘victory’ for religious ideas in a range of key constitutional 

contexts – including in cases involving the reasonableness of limiting rights 

of religious conversion for the purposes of inter-faith marriage,

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 the unilateral 

decision by one parent to convert a child’s religion without the knowledge or 

consent or another parent

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 and various civil law cases interpreting secular 

statues. In doing so, she also highlights an important additional dimension to 

the idea of the ‘invisible constitution’: as comprising relatively settled or pre-

dictable patterns in how courts resolve constitutional conflicts in the context 

of questions of constitutional proportionality.

Chan, Chen and Lo, in writing on Hong Kong and Macau, also focus on 

similar aspects of the invisible constitution – i.e., consistent patterns in the 

application of a doctrine of proportionality in the two jurisdictions. Not every 

decision by a court to give priority to one constitutional norm, or value or legal 

interest, over another, will necessarily be part of the invisible constitution in 

an enduring sense. But consistent patterns of priority given to one value over 

another will be candidates for inclusion in our understanding of the invisible 

constitution. In Hong Kong, Chen and Lo suggest, for instance, the doctrine 

of proportionality is generally applied in a quite searching and robust way. The 

only exception, as Chan notes in his separate chapter, is in the context of cases 

involving socio-economic rights. In Macau, in contrast, Chen and Lo argue 

that the doctrine is applied in a far more deferential and curtailed way, which 

more closely approximates a form of rationality or reasonableness-based review.

Both Chan and Miller, in their respective chapters, also analyse the invisi-

ble constitution through the lens of different legal systems or traditions. In the 

Hong Kong context, Chan notes the degree to which the Hong Kong CFA’s 

constitutional jurisprudence reflects an ongoing tension or dialogue, between 

common law and mainland constitutional ideas and how this tension is medi-

ated or informed by notions of continuity versus change in constitutional 

interpretation in Hong Kong. In a German context, Miller describes the ways 

in which the German Basic Law and jurisprudence of the Constitutional 

Court is shaped both by common law traditions of evaluative judgment and 

relatively unbounded judicial discretion and adherence to a doctrine of prec-

edent and more distinctly ‘civilian’ traditions. In many contexts, Miller notes, 

the Basic Law is quite specific and code-like in nature and delegates the task 

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