Small-c Constitutional Rights

92 Pages Posted: 2 Dec 2019 Last revised: 19 Aug 2020

See all articles by Adam Chilton

Adam Chilton

University of Chicago - Law School

Mila Versteeg

University of Virginia School of Law

Date Written: July 30, 2019

Abstract

Although constitutions lay out the fundamental principles by which countries are governed, identifying exactly which legal materials are considered constitutional is not a straightforward task. This is for two reasons. First, there is no systematic evidence about the relative importance of countries’ formal, written constitutions—the “Large-C” constitution— versus their broader body of constitutional law derived from sources like judicial decisions, treaties, and conventions—the “small-c” constitution. Second, it is often difficult to establish which legal materials are definitively part of a country’s small-c constitution. We investigated the nature and relative importance of small-c constitutional rights protections by fielding a global expert survey to 220 experts from 123 countries. The results illustrate that although the Large-C constitution is the primary source of constitutional rights in a majority of countries, the small-c constitution also plays a significant role, especially in older constitutional systems. Perhaps surprisingly, whether a country has a civil law or a common law tradition is only weakly associated with the shape and form of the small-c constitution in most countries.

Keywords: Constitutional Law, Comparative Law, Constitutional Rights, Comparative Constitutional Law, Rights

JEL Classification: K00

Suggested Citation

Chilton, Adam and Versteeg, Mila, Small-c Constitutional Rights (July 30, 2019). Virginia Public Law and Legal Theory Research Paper No. 2019-67, University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 894, Available at SSRN: https://ssrn.com/abstract=3490919

Adam Chilton (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://www.adamchilton.org

Mila Versteeg

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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