Identifying Constitutional Law

Empirical research in comparative constitutional law has largely relied on coding countries’ “large-C” constitution. 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 laws. We outline three possible 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. We argue that which approach is most suitable depends on the objectives of the comparative research project.