—Claudia E. Haupt, Associate-in-Law, Columbia University
What exactly are we doing when we engage in comparative constitutional inquiry? How do we choose the parameters of comparison? How do we determine whether we ought to engage in a large sample size (or large-N) or a small sample size (or small-N) study? Unsurprisingly, the reflexive answer is: “it depends.” What it most immediately depends upon is the question we are trying to answer, or the problem we are trying to elucidate, by means of comparative inquiry.[1] Are we trying to explain the outcome in a small set of specific cases, or are we trying to generalize across (historical) time and (geographical) space? If our goal is the former, what useful role can case-specific inquiry play in comparative constitutional law? What, if anything, can we learn from studying religion-state relations in Western Europe,[2] constitution-making in post-Communist regimes[3] or Latin America,[4] or the role of the military in promoting democracy in the Middle East?[5] What larger lessons, beyond explaining the outcome in particular cases, can such inquiries offer to constitutional law and theory?
Scholars of comparative constitutional law are by no means alone in assessing the value of qualitative versus quantitative approaches. Political scientists, to name only one group in a related academic field, have been engaged in this debate for a while as well.[6] As constitutional comparativists, should we ask whether we can learn from similar debates in related disciplines? These questions, and others I will raise, deserve significant attention. Suffice it to say at this point, as I have attempted to explain in more detail elsewhere, that some questions likely can be better answered by taking a limited perspective that allows for sufficient attention to extra-legal factors.[7] In short, sometimes context matters.
Most recently, my own research has focused on religion-state relations in the United States and Western Europe. If we want to determine whether experiences with nonestablishment elsewhere can inform our experience, or vice versa, we must first come up with a framework that lets us determine which developments are relevant; “[t]he usefulness of . . . comparison depends on which areas map onto [developments elsewhere], which do not, and why.”[8] This determination involves deep and nuanced inquiry into the historical, political, and cultural spheres. Such inquiry is immensely useful to answer not only the initial comparability question, but also to determine parallels in explanation of outcomes. Recent contributions in the field have demonstrated in exemplary fashion what such inquiry might look like.[9] Moreover, interdisciplinary comparative work adds a valuable dimension, and commentators have raised important questions about comparative and interdisciplinary methodology in this context.[10]
None of this should strike students of comparative law as particularly novel; indeed, distinguished scholars have made insightful contributions to the methodological discussion in comparative constitutional law.[11] Yet, it seems that the appropriate role of qualitative, or case-outcome-focused, methodology of comparative constitutional law curiously remains underexplored. This seems particularly puzzling given the focus on the case method in the Langdellian tradition of legal education in the United States. How can scholars studying different case-specific occurrences best cooperate when they find similar outcomes and perhaps even similar themes in explaining those outcomes? How do accounts offering cultural, historical, and political contexts fit into the wider repertoire of comparative constitutional law methodology? How can the case-specific approach effectively communicate with the quantitative approach, with the goal of maximizing the amount of comparative knowledge gained through employing multiple methodological tools?
Putting a theoretically ambitious version of qualitative inquiry in comparative constitutional law on the map is a formidable challenge, to be sure. A group of younger comparativists will be meeting at Columbia Law School in the near future to further discuss these and related questions. Meanwhile, I would like to echo the call for a wider methodological discussion within the comparative constitutional law community and beyond.
* Associate-in-Law, Columbia Law School. I am indebted to Will Partlett for ongoing conversations about this topic.
[1] See Kim Lane Scheppele, Constitutional Ethnography: An Introduction, 38 Law & Soc’y Rev. 389, 394 (2004).
[2] Claudia E. Haupt, Religion-State Relations in the United States and Germany: The Quest for Neutrality (2012).
[3] William Partlett, Making Constitutions Matter: The Dangers of Constitutional Politics in Current Post-Authoritarian Constitution Making, Brook. J. Int’l L. (forthcoming), available at http://ssrn.com/abstract=1924958.
[4] David Landau, Constitution-making Gone Wrong, Ala. L. Rev. (forthcoming), available at http://ssrn.com/abstract=2011440.
[5] Ozan O. Varol, The Democratic Coup d’État, 53 Harv. Int’l L. J. 291 (2012); Ozan O. Varol, The Military as the Guardian of Constitutional Democracy, 50 Colum. J. Transnat’l L. __ (forthcoming 2013).
[6] See, e.g., James Mahoney & Gary Goertz, A Tale of Two Cultures: Contrasting Quantitative and Qualitative Research, 14 Political Analysis 227 (2006)(providing a brief overview of the differences in methodological approach).
[7] Haupt, supra note 2, at 64-76.
[8] Claudia E. Haupt, Transnational Nonestablishment, 80 Geo. Wash. L. Rev. 991, 995 (2012), available at http://ssrn.com/abstract=1912842.
[9] See, e.g., James Q. Whitman, Separating Church and State: The Atlantic Divide, 34 Historical Reflections 86 (2008); Mark L. Movsesian, Crosses and Culture: State-Sponsored Religious Displays in the US and Europe, Oxford Journal of Law and Religion (2012).
[10] Movsesian, supra note 9, at 25.
[11] See, e.g., Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am. J. Comp. L. 125 (2005); Ran Hirschl, On the Blurred Methodological Matrix in Comparative Constitutional Law, in The Migration of Constitutional Ideas 39 (Sujit Choudhry ed., 2006); Mark Tushnet, Some Reflections on Method in Comparative Constitutional Law, in The Migration of Constitutional Ideas 67 (Sujit Choudhry ed., 2006).
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