Working Papers

Identifying Constitutional Law
Current Draft: December 2021 (with Mila Versteeg)

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.