Legal Tradition and Methodology in Comparative Constitutional Law

David Landau

Florida State University

This week, we return to some of the themes discussed at the IACL roundtable held in Melbourne in May 2016 on 'The Invisible Constitution in Comparative Perspective'. This first blog post is by Professor David Landau.

I’d like to focus briefly on a paper given by Russ Miller (Washington & Lee) called “Constitutional Implications in Germany: The Civil Law Influence.” Russ’s thesis, in brief, is that the civilian tradition is itself a part of the “invisible constitution” of Germany, and that German constitutionalism cannot be understood without absorbing that influence. At the same time, Russ rejects the simplistic classifications (like civil vs. common law) at the core of much traditional work in comparative constitutional law. He argues, for example, that modern German constitutionalism is highly particular, at times acting as a hybrid of civil law and common law ideas. His argument is thus really twofold. It rejects attempts to study German constitutionalism at a facile level – say, by reading a couple of Constitutional Court decisions – without taking stock of the richness of the legal tradition underlying that system. But it also rejects attempts to oversimplify those legal traditions by generalizing and classifying across countries, when in fact they are influenced by a range of contingent factors and thus are at least in part specific to each country under study.

The piece hit home with me, as Russ’s work always does. One might say that the purpose of our work in comparative constitutional law is to build the most accurate model imaginable of the system under study. In that sense, what’s striking is how thickly contextual and complex constitutional law is as a discipline. In the system I know best outside of the United States – Colombia, on which I’ve been working for more than a decade – I am constantly humbled by how little I actually know. Without having gone to school in a given country, been trained in that system, or practiced there, it is difficult to fully comprehend its dynamics. In particular, I am left with the uneasy feeling that even on issues I know very well, my own approach to legal problems is fundamentally different from that of locally-trained lawyers.  Finally, calling the system “civil law,” or trying to classify it in some other big-picture way (Latin American law; new constitutionalism) seems to avoid or oversimplify as many problems as it resolves.

Russ’s work sits perhaps near one pole of a highly pluralistic field – a field that now includes large n-quantitative studies as well as a wide range of different techniques of qualitative research, ranging roughly from structured case studies to constitutional ethnography, and including as well a range of techniques of doctrinal analysis from scholars who perhaps have distinct goals. The leading practitioners tend to argue that this pluralism is a strength – and in comparison with other, more fractured disciplines that certainly seems right.

Beyond calling for continued pluralism, though, how can we advance debate about methodology in comparative constitutional law, particularly in a world where scholars come from different methodological backgrounds, have different goals, etc. As Ran Hirschl has recently written, the field needs more reflection about method, which at this stage seems to be largely an outcome of the training, tools, and inclinations of individual scholars.

One preliminary possibility is to recognize the importance of more reflective choice about methodology. The choice of method is, or ought to be, a response to the kind of problem studied by a researcher. But perhaps more troublingly, it also tends to drive what we end up finding – similarity versus difference, as an example. Another way to put the same point is that the models we build need not, and indeed should not, look the same for all purposes. The concept of a “better” model is meaningless in the abstract. Since all models abstract and simplify, while maintaining certain details, the question is whether the choices made are good ones for the task at hand. For some (maybe many) purposes, understanding the full, and nuanced, constitutional history of each country under comparison is important. I am not yet persuaded that that kind of deep dive is necessary for all (or even most) purposes.

The bigger question on which we need to think as a field, then, is which tools are the best ones for which kinds of problems and issues? But that’s a question for another day.

Professor David Landau is Mason Ladd Professor, Associate Dean for International Programs, Florida State University College of  Law.