Identifying Constitutional Law

31 Pages Posted: 15 Dec 2021

See all articles by Adam Chilton

Adam Chilton

University of Chicago - Law School

Mila Versteeg

University of Virginia School of Law

Date Written: December 7, 2021

Abstract

Empirical research in comparative constitutional law has largely relied on coding countries’ “large-C” constitution—that is, the text of the written constitution—and not their “small-c” constitution—that is, the larger set of interpretations, conventions, and laws that can also be part of constitutional law. The potential biases associated with approach to coding constitutional law has been repeatedly raised as a criticism of this line of research. That said, incorporating small-c constitutional sources into empirical comparative constitutional law research first requires developing an approach to systematically identifying small-c constitutional law across countries. We outline three possible kinds of approaches for doing so: (1) Entrenchment Approaches, which emphasize entrenchment as the defining feature of constitutions and constitutional law; (2) External Approaches, which emphasize core constitutional functions, such as structuring and limiting government and rights; and (3) Internal Approaches, which emphasize local understandings of the constitution and constitutional law. While these approaches yield only minor differences when identifying Large-C constitutions, they produce substantial differences when identifying small-c constitutional sources. We argue that which approach is most suitable depends on the objectives of the comparative research project.

Keywords: Comparative Law, Comparative Constitutional Law, Comparative Constitutional Studies, Constitutional Law, Constitutional Rights, Small-C Constitutions

Suggested Citation

Chilton, Adam and Versteeg, Mila, Identifying Constitutional Law (December 7, 2021). Available at SSRN: https://ssrn.com/abstract=3980207 or http://dx.doi.org/10.2139/ssrn.3980207

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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