Conceptualizing the Field of Comparative Constitutional Law

27 Pages Posted: 28 Mar 2022 Last revised: 1 Apr 2022

See all articles by David S. Law

David S. Law

University of Virginia School of Law; The University of Hong Kong - Faculty of Law

Date Written: March 28, 2022

Abstract

Comparative constitutional law is a sprawling and thriving field, but it has its blind spots. Its traditional substantive focus has been the judicial protection of rights in liberal democracies, while its traditional geographical focus has been a handful of roughly a dozen liberal democracies in Western Europe and the common law world that practice judicial review and generate lengthy judicial opinions. This unofficial canon does not begin to capture the actual diversity of constitutional law and politics around the world.

The resulting blind spots leave the field poorly positioned to address a number of pressing real-world concerns. For example, even when the field does engage with increasingly urgent problems like democratic erosion and the spread of authoritarianism, it tends to do so through the prism of landmark rulings by assertive courts in liberal democracies, which is akin to tackling disease by studying only healthy athletes: the objects of study are not indicative of the problem at hand.

We cannot remedy this state of affairs without confronting fundamental questions about the field itself: what should we be trying to study, and how we should study it? The answer is that there is no single correct answer: the diversity of the audience and the subject matter alike calls for pedagogical and methodological pluralism, meaning the practice of multiple complementary approaches to the study and teaching of comparative constitutional law and politics.

Critical reflection on existing practice suggests the existence of at least five competing approaches or models, each of which embodies a different conception of the field: these might be called instrumentalism, tourism, immersion, abstraction, and representation. Instrumentalism and tourism dominate existing pedagogical practice, while immersion and abstraction pervade the scholarly literature. Representation is the least traditional model, which reflects its embrace of the study of nontraditional forms of constitutionalism that are easily neglected under the other models.

Instrumentalism aims to equip domestic lawyers with a comparative repertoire that can be brought to bear on domestic issues. In practice, this tends to translate into an emphasis on case law from other jurisdictions on hot-button issues in domestic law. Tourism revolves around the idea that certain materials are in some sense canonical and ought to be studied for that reason. It seeks to implement the notion that there are certain things students ought to study, whether because they are already widely studied (de facto canon) or objectively deserving of study (explicit canon) or some combination of the two.

Immersion and abstraction stand for opposing traditions in the comparative literature. In particular, they take opposite approaches to the tradeoff between depth and breadth of coverage. The goal of the immersion model is to enable students to see the world through the eyes of the other or least develop a rich understanding of context, which in methodological terms entails a deep dive into a very small number of topics or jurisdictions. The abstraction model, by contrast, aims to impart generic skills and knowledge that are broadly applicable. Generalization and categorization are the defining tools of this approach.

The representation model is explicitly anti-canonical: it aspires to maximize exposure to the diversity of real-world constitutionalism, in both its traditional and nontraditional forms. On this view, nothing is off limits and everything merits study because the study of constitutionalism should pursue knowledge of all constitutionalism, not just the bits that particular audiences may find praiseworthy or useful. The recently published volume Constitutionalism in Context (Cambridge University Press, 2022) offers a concrete example of how this unfamiliar model might be implemented: it adopts a case study approach to the study of an unconventional yet broadly representative selection of topics and jurisdictions. This approach to implementing the representation model doubles as a strategy for mitigating the tradeoff between depth and breadth: the case study format ensures a degree of depth and context, while the case selection guarantees a degree of breadth and diversity.

Keywords: instrumentalism, tourism, immersion, abstraction, representation, canon, anti-canon, unofficial canon, comparative constitutional law, constitutional studies, constitutionalism, comparative law, comparative method, pedagogy, pluralism, pedagogical pluralism

JEL Classification: K19

Suggested Citation

Law, David S., Conceptualizing the Field of Comparative Constitutional Law (March 28, 2022). Constitutionalism in Context (David S. Law ed., Cambridge University Press 2022), Virginia Public Law and Legal Theory Research Paper No. 2022-24, University of Hong Kong Faculty of Law Research Paper No. 2022/15, Available at SSRN: https://ssrn.com/abstract=4067849

David S. Law (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

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