IACL World Congress, Mexico
Workshop 17: How ‘Comparative’ is Comparative Constitutional Law?
The past decade has witnessed a sharp comparative turn in legal scholarship. “We are all comparativists now” has become the motto of many jurists worldwide. The ever increasing interest among scholars, practitioners, and policy-makers in the laws and legal institutions of other countries is remarkable. This new interest is particularly striking in comparative constitutional law and the transnational migration of constitutional ideas.
From a relatively obscure and exotic subject studied by the devoted few, comparative constitutionalism has emerged as one of the more fashionable subjects in contemporary legal scholarship. However, despite the many scholarly advancements, the field of comparative constitutional law continues to lack coherent methodological and epistemological foundations. In fact, fundamental questions concerning the very purpose and rationale of comparative inquiry and how that enterprise is to be undertaken remain largely outside the purview of canonical constitutional law scholarship. This workshop will address some of the core epistemological and methodological questions the field is facing.
- What is the aim or raison d’etre of comparative constitutional law? The very term “comparative constitutional law” often carries different meanings and sets of common practices for policy-makers, legislators, lawyers, judges, legal academics, and social scientists. Is it possible, necessary or useful to define a single aim?
- What is the meaning of the “comparative” in comparative constitutional law? The term “comparative” is often used indiscriminately to describe what, in fact, are several different types of scholarship: (i) single-country “constitutional ethnographies” that are characterized as comparative mainly by virtue of dealing with any country other than the author’s own (since everyone is immersed in a given legal culture, studying another legal culture generates at least an implicit comparison with one’s own) (ii) genealogies and taxonomy of constitutional systems; (iii) surveys of foreign constitutional law aimed at finding the “best” or most suitable rule across cultures; (iv) comparative references aimed at engendering self-reflection through analogy, distinction, and contrast; (v) concept formation through multiple descriptions of the same constitutional phenomena across countries; and (vi) reliance on controlled comparison and inference-oriented case selection in order to assess change, explain dynamics, and make inferences about cause and effect through systematic case selection and analysis of data.
- How reflective are methods of comparison of the analytical aims or intellectual goals of specific studies? What is the significance of the concrete research questions or thematic focus on determining the nature of the comparative approach used? Can or should we talk about a single agreed upon, “official” comparative method, or perhaps ensure that a rational, analytically adaptive connection exists between the research questions and the comparative methods used?
- Is comparative constitutional law a sub-field of comparative law? Is it a sub-field of constitutional law? What would be the implications or consequences of treating it as sub-field of one or both of these areas of inquiry? Or is comparative constitutional law an altogether independent area of inquiry? Should it reflect doctrinalism and formalism, or perhaps engage more frequently with disciplines such as political science, sociology, history or economics? Is there a conceptual affinity between comparative constitutional law and other comparative disciplines (e.g. comparative politics, comparative literature, comparative religion, comparative psychology)?
- What is the modern comparativist’s basic toolkit? Obvious candidates include pertinent linguistic and legal skills; detailed knowledge of foreign legal systems, jurisprudence, and legacies (as opposed to a sketchy acquaintance with two dozen foreign cases); familiarity with basic comparative methodologies, quantitative and qualitative (as opposed to a methodology-light approach to comparative law scholarship); the ability to remain constantly informed about often under-reported legal and constitutional developments overseas (as opposed to a Montesquieu-like selective reliance on secondary and easily attainable sources that all too often adhere to the author’s normative predispositions and support his or her arguments); cultural sensitivity; the willingness to spend lengthy periods of time doing fieldwork in less than dazzling conditions (as opposed to “armchair” anthropology research carried out with little or no fieldwork or systematic data collection). Should scholars of comparative constitutional law aspire to develop these skills even if it appears unrealistic to master all of them?
- How significant is the tension between universalism and particularism in the study of comparative constitutional law? Do proponents of universalism tend to overemphasize similarities? Do advocates of contextualism incline to over-emphasize differences? Are there areas of constitutional law (say, rights) where contextualist concerns may be less powerful (and hence comparisons are more beneficial) as opposed to other areas (say, aspirational or organic features of the constitution) where idiosyncrasies and contingencies may have more of a bite?
- What is the effect of the rapid development of information technology, and the tremendous improvement in quality and accessibility of data sources on constitutional systems and jurisprudence worldwide on the way comparative constitutional inquiries are (or ought to be) pursued? In particular, thanks to the accessible, rich body of pertinent information, it is now possible – perhaps for the first time – to engage in serious, methodologically astute, dialogue between ideas and evidence, theory and data, normative claims and empirical analysis. And related to that, what, if any, has been or should be the impact of what has been termed “the new legal realism” and “empirical legal studies” on the way comparative constitutional inquiries are pursued?
- How “comparative” is a field whose canonical authors and venues often draw on the constitutional experience of a dozen, mostly liberal democratic countries, but seldom refer to the constitutional experience, law and institutions elsewhere? Is this (or should it be) a concern? Should this qualify or limit the applicability of canonical scholarship or perhaps point to the relativism of purportedly universal lessons drawn from oft-studied settings?