—Jorge González Jácome, Associate Professor of Law at Universidad de los Andes
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In this text, I would like to offer some reflections on the practice of comparative constitutional law, drawing from my experience supervising the work of master’s and doctoral students at a university in the Global South. As Ran Hirschl predicted a decade ago, comparative constitutional law has perhaps ceased to be a marginal note in constitutional studies and has flourished thanks to various associations, initiatives by professors and constitutional judges, and specialized journals on the subject. In this boom of comparative constitutional law, one consensus is that comparison must move away from formalist perspectives that focus solely on positive norms of different countries and take into account the contexts surrounding the production of law.
While lawyers embrace contexts to acknowledge that law is embedded within the social processes of a political community, for researchers it is not easy to understand what the term “context” actually means. In fact, as occurs with other terms we design for our research, this notion solves problems associated with formalistic analyses, but at the same time opens up a series of other problems. I would like to dwell on some of these problems or questions that our recognition of context as an analytical criterion in comparative constitutional law has led us to. I hope that these discussions may help researchers beginning their projects in these areas to deepen their approaches. I address three sets of problems for which I have more questions than answers.
A first set of questions revolves around interdisciplinary legal theory projects that connect law with society, economics, and politics. Various theoretical approaches to law, since the second half of the 20th century, have contributed an anti-formalist perspective by embedding law within other types of processes. For example, some versions of law and society articulate the development of law based on the socioeconomic needs of capitalism. An approach from this perspective will lead the researcher to think that the constitutional law of various countries is embedded in the context of socioeconomic development. Therefore, their choice will be to investigate the processes of capitalist formation and then conclude that constitutional law relates to that trajectory. Similarly, from the standpoint of critical legal studies, the close relationship between law and politics has been a fundamental approach, subject to multiple nuances. For a researcher approaching from this theoretical conviction, the political context will be key in their approach, and they will need to clarify what they mean by politics. In this sense, context is part of the theoretical choices we make —choices that we sometimes fail to make explicit. The call for context, in this set of concerns, is also a call to take seriously the theoretical position from which we write.
The second set of questions has to do with time. In recognizing the connection between law and social processes, we must ask how we explain a judicial decision or a legal norm of a country in light of a process that has a specific temporality. This raises a historiographical question—always a difficult one for historians—related to periodization. When does a process begin and when does it end? For instance, in analyzing the adoption of the 1991 Constitution in Colombia, different temporalities have emerged. Some scholars see it as an immediate reaction to the institutional weakness of the 1980s amid growing political violence. Others frame it as part of a democratic opening effort that must be traced back to the 1970s, while others could interpret it as the consolidation of a neoliberal economic model, pointing to the decline of the developmentalist state adopted in Latin America after the 1950s. It is clear that these concerns about temporality connect to those referring to theoretical questions. In this case, the researcher must justify the temporal framework they choose to explain the process underlying a constitutional issue.
A third set of questions concerns the relationship between law and a country’s legal culture. Some of the transformations in constitutional aspects of countries relate to the way a political community understands the possibilities and limits of what law can do. Largely, this refers to the existence of a community of experts who, over time, have built a vision of how constitutional law functions. This approach is fundamental in the debate on constitutional migrations and the reasons why certain theories, institutions, or norms work differently in the place of reception than in the “place of origin.” The ways in which local legal cultures interpret migrating norms or theories depend on the receivers’ contexts. As Diego López shows in the Colombian case, in a formalist reception environment, local jurists ignored Kelsen’s critical theories on legal hermeneutics, while taking advantage of the Austrian jurist’s cultural prestige to shape a theory of legal positivism understood as legal formalism. Thus, the description and explanation of the intellectual context of the legal community is an important question when undertaking comparative projects. How do the lawyers of a country conceive of the role of constitutional law in their society? The comparativist, then, must engage with doctrine, case law, and conversations with colleagues from other places in order to understand that constitutional law is both the result of and a contributor to the beliefs about how law functions in society.
The above reflections are intuitions that have arisen from my conversations with postgraduate students and point to the fact that contextualization is a problem —not merely a solution. For an academic in the Global South, highlighting the complexity of context is useful for fostering dialogue with researchers from the Global North. To a large extent, if context is as complex as these reflections suggest, any comparative exercise that does not involve meaningful dialogue between academics from the countries under study seems incomplete.
Suggested citation: Jorge González Jácome, Comparative Constitutional Law and the Problem of “Context”, Int’l J. Const. L. Blog, Jun. 25, 2025, at: http://www.iconnectblog.com/comparative-constitutional-law-and-the-problem-of-context/
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