Theorising Constitutions Comparatively

The relationship between constitutional theory and constitutional comparison is an area of evolving scholarly interest and concern. Constitutional theory has long engaged in dialogue with constitutional practice, but often that dialogue is more implicit than explicit. In part because of that, it can focus on a relatively narrow range of countries, or ‘the usual suspects’ in constitutional law, and where that happens, the theories developed will not be able to account for the global variety of constitutional experiences and practices. This essay thus starts from the proposition that comparative engagement by constitutional theorists with constitutional practice in a wide range of jurisdictions is desirable, and should be actively encouraged. But it also cautions that scholars must be attentive to taking constitutional comparison seriously, and to engaging in it in a methodologically rigorous way. In order to assist with this task, the essay set out three archetypical modes in which constitutional theory can be informed by constitutional practice—inductive, illustrative and reflexive—and illustrates those modes in practice (including in their hybrid forms and the way they can interact with each other) by reference to a range of recent works of constitutional theory. It then turns to the question of how to ensure that such comparative engagement is methodically rigorous. We suggest that rigorous forms of comparative constitutional theorising involve three key commitments: transparency in the jurisdictions relied on, symmetry between the countries chosen and the scope of theoretical claims made, and self-awareness or reflexivity on the part of scholars as part of this process. Work that adheres to these commitments is more likely to constructively contribute to what is ultimately a collaborative quest by scholars to advancing our collective understanding of constitutions.