How Do and Should We Compare Constitutional Law?

Abstract

How we compare constitutional law tends to depend in significant part on which side of several different divides we happen to be situated, on who the "we" is. Are we engaged in constitutional comparison (1) as legal academics or as social, especially political, scientists; (2) as legal academics whose national constitutions operate within a robust transnational legal order or more autonomously; (3) as legal academics from common law or civil law jurisdictions and law faculties; (4) as primarily scholars of constitutional/public law or of comparative/private law; or (5) not as scholars at all but as constitutional judges, lawyers, drafters, consultants or experts?

But should it? Should there be a more uniform or trans-contextual approach to constitutional comparison that transcends these divides? And how does this differentiated practice relate to what are sometimes perceived as the disciplinary or methodological weaknesses of comparative constitutional law despite its undoubted revival and growth in recent decades? Is this practice the root cause of any such problems so that, again, eliminating these divisions is the solution? If not, what if anything should be done to change how we compare constitutional law?

This essay argues that rather than adopting either a single, more uniform approach or a series of specialized and mostly compartmentalized sub-fields, as for example in political science, comparative constitutional law should acknowledge, and indeed celebrate, the pluralism and interdependence of its methods as mutually important pieces of the overall enterprise. This is emphatically not to say that the discipline could not usefully become more methodologically self-aware nor to deny the value of more empirical and interdisciplinary work, but rather that such trans-contextual uniformity or compartmentalization would be a mistake in a field as broad, developing, and as rooted in the world of practice both inside and outside the courtroom as comparative constitutional law.

Keywords: comparative constitutional law, methodology, aims, objects, constitutional politics, comparative law, political science