Comparative Constitutional Studies: Two Fields or One?

Abstract

This article reviews recent comparative research on constitutionalism and judicial review and argues that it is best understood as falling into two fields: comparative constitutional law (CCL) and comparative judicial politics. Although both fields are directed at the same phenomenon—the global spread of constitutionalism and judicial review—their purposes and methods are different. CCL, for its part, is aimed at constructing constitutional law doctrine, understanding the methodologies of judicial recourse to foreign law, and investigating how similar-seeming constitutional principles take on different meanings in different legal systems. Comparative judicial politics, by contrast, consists of a range of political science research on the origins and ongoing dynamics of judicially enforced constitutionalism. The recent call for CCL to progress into comparative constitutional studies should accordingly be treated with caution. Although there are opportunities for productive dialogue between the two fields, such dialogue needs to recognize the distinct identity of each.