1 The Problem of Capacity
The study of constitutionalism suffers from an embarrassment of riches. The very qualities that make the field so rewarding for scholars – interdisciplinary foment and dialogue, a subject matter and an audience as broad and varied as the world itself, vast unexhausted possibilities and low-hanging fruit as far as the eye can seeFootnote 1 – ensure that we lack the capacity to teach everything that ought to be taught. As a result, pedagogy becomes an exercise in triage. What can we afford to pare away, and what is essential? What do we believe the next generation needs most, and why? When push comes to shove and we are forced to prioritize, what do we choose? These are not just questions of classroom time management; they cut directly to the conceptualization and reproduction of the field. Pedagogy is how a field perpetuates itself: the pedagogy of today defines the field of tomorrow. To teach a truncated conception of the field is therefore to limit the field.
“Too much material, not enough time” is a familiar complaint across any number of fields, but the problem of insufficient capacity is especially acute for comparative constitutional studies due to the interaction of four factors: time, content, expertise, and audience. In terms of time and content, instructors already struggle just to cover domestic constitutional law. Putting the constitutional law of every country in the world on the agenda does not make things easier. The interdisciplinarity of the field only compounds the challenge. Scholars have responded to the multidimensionality and complexity of the subject matter by bringing to bear a range of interdisciplinary approaches from political science, history, sociology, anthropology, economics, and so on. Each of these approaches, in turn, is characterized by distinctive research methods and traditions that valorize different types of materials. And this is to say nothing of the materials in other languages that our own limitations hold at bay. The growing availability of translations continues to lower language barriers and expand our access to entire realms of new material.
All of this diversity means that there is even more to teach. At the same time, the time pressure is guaranteed to be worse. Assuming that it is offered at all, comparative constitutional law is almost certain to be an elective that is allotted fewer hours than the mandatory offerings in domestic constitutional law, which are already pressed to their limits by a smaller universe of material.Footnote 2 And it is not just the clock on the wall that limits our pedagogical options, but also the extent of our expertise. In the face of a multinational, multidisciplinary, and multilingual field, the range of material can easily outmatch an instructor’s expertise. We cannot expect to convey deep knowledge of what we do not know very well. In what other field, for example, are places like Germany or Israel or South Africa so widely discussed by people who do not know the language or have never seen the country? In a profession that supposedly lives and dies by the close reading of primary materials, how are monoglot generalists supposed to teach about foreign legal systems?Footnote 3
To the problems of too much content and too little time and expertise, add the further problem of too many audiences. Courses that go by the name of “comparative constitutional law” are taught around the world to very different types of students with very different expectations and career paths. There are undergraduates in LL.B. programs, graduate students in LL.M. and J.D. programs, research postgraduate students in S.J.D. and Ph.D. programs. And that is to speak only of law faculties and law schools, never mind the graduate students in cognate disciplines such as political science, economics, sociology, and history who need exposure to the scholarly literature in this highly interdisciplinary field. The fact that courses of the same name can be found everywhere does not necessarily mean that the same content should be taught the same way everywhere, to everyone.
Consider just a single institutional setting – a comparative constitutional law elective at a US law school. Some of those enrolled may be domestic J.D. students; others may be foreign LL.M. students from a wide variety of professional and legal backgrounds. Still others may be exchange students or visiting scholars who defy easy generalization. Some may have a keen interest in constitutional litigation; some may be aspiring academics; some may be actual judges. Some may be from places abroad where overseas-educated lawyers play a hands-on role in writing new constitutions; others may approach constitutional law as strictly a spectator sport. Some may be interested in learning from other countries, others might prefer to learn about other countries. What does such a motley assortment of students want or need? Something “useful”? Something “interesting”? Is it possible to generalize about what the class might find either “useful” or “interesting”? Or should we expect that each class will have needs and tastes as diverse as its membership?
Surely they need an overview of the main substantive, methodological, and conceptual debates in the academic literature. Or would they be better served by studying a sampling of topics and jurisdictions that captures the diversity of contemporary constitutionalism? Or perhaps what they need, instead, is to see what lessons other countries hold for their own, or to acquire a solid foundation in the de facto canon of materials that are most widely discussed, or to learn to think like a foreign lawyer, or to acquire basic survival skills for dealing with constitutional issues in unfamiliar environments. The basic pedagogical dilemma is that all of these competing answers are highly plausible. And if we cannot figure out what students need, then we also cannot figure out how textbooks should be designed or evaluated. We require some pedagogical theory or model of what our goals are and how to achieve them.
The good news is that models of this kind already exist. The bad news is that they are rarely articulated, much less critically examined. Section 2 of this chapter identifies and evaluates five competing pedagogical models – namely, instrumentalism, tourism, immersion, abstraction, and representation. Section 3 uses the contents of this book to illustrate how the representation model might be implemented in textbook form, and what the benefits of such an approach might be. Section 4 concludes by arguing that the challenges of teaching comparative constitutional law call for pedagogical pluralism.
2 Five Models of Pedagogy: Instrumentalism, Tourism, Immersion, Abstraction, and Representation
It is impossible to craft a textbook or even a syllabus – to determine how it should be organized, what it should include, what it should omit – without acting on some understanding or model of how the subject should be defined and taught. These models may not be explicit, but they are always there, and they answer a host of basic questions not just about pedagogy, but also about the field itself. What is this subject that we are trying to teach? Can we even decide what it should be called? (“Comparative constitutional law”? “Constitutionalism?” “Comparative constitutional studies?”)Footnote 4 Who are we trying to teach, and what do they need? What is worth learning?
There exist at least five pedagogical models that offer plausible answers to these questions. We might call them instrumentalism, tourism, immersion, abstraction, and representation. Each model is defined by a theory of what our pedagogical objectives should be, and a strategy for achieving those objectives in the face of the practical problem of capacity.
All five models offer certain baseline benefits that are inherent to the enterprise of comparative law. Training in comparative law develops critical evaluation and creative problem-solving skills and cultivates the ability to “think like a lawyer” by equipping students with an awareness of other ways of doing things, a deeper understanding of the problems lawyers tend to face, and an expanded set of potential solutions.Footnote 5 Comparative legal training is effective in part because it incorporates multiple levels of learning by doing: it forces students to go beyond absorbing and applying law, to comparing and evaluating law. Moreover, the critical lens of comparative law points inward as well as outward: it produces lawyers who are reflective and self-aware about their own legal systems. Comparison of “us” versus “them” breeds awareness of not only the strengths and weaknesses of our own practices, but also the contingency of those practices.
Beyond these shared benefits, each of the five models has distinctive strengths and weaknesses, and an audience to match. Thoughtful pedagogy must be tailored to the audience, and the audience for an international and interdisciplinary subject like “comparative constitutional law” or “constitutionalism” is bound to vary greatly. Accordingly, there is probably no uniquely correct or superior choice across the board among these models. In a field as rich as comparative constitutional studies, it is unlikely that any course or book can successfully be all things to all people.
2.1 Instrumentalism
Suppose that you are an American who makes roast beef sandwiches, and in the spirit of self-improvement, you set out on a world tour to find the best roast beef sandwiches. And you discover – oh how interesting, the French put mustard on theirs, whereas the Germans put sauerkraut on theirs, and maybe you get some ideas for how to make tastier roast beef sandwiches. Your journey may be eye-opening. But your explorations ultimately begin and end with your interest in roast beef sandwiches. If a particular place lacks roast beef sandwiches, then you simply leave it off your itinerary, no matter how celebrated the local cuisine happens to be. The tour will skip over vast reaches of the world, and even where it does stop, it will not necessarily expose you to the things that the locals like most. The goal is not to learn what people in other countries like to eat, or why they like to eat those things, or how to make them.
There is an analogous way of approaching the study of constitutionalism. You travel not out of wanderlust, but in search of things that might be valuable to you upon your return home. The point is to learn from other countries, not about other countries. The topics you study are therefore those that lawyers and judges back home find important, while the countries you consider are those that face constitutional issues and challenges comparable to those in your own country. You engage in comparativism not for the sake of understanding or learning about foreign law, but instead for the purpose of exploring and developing arguments for and against various approaches to domestic constitutional issues. For example, if you come from the United States, then your goal might be to craft constitutional arguments for judicial consumption, and you might accordingly limit your search to other liberal constitutional democracies with active traditions of judicial review. In other words, you are engaged in an instrumentalist form of comparativism. Instrumentalism solves the problem of capacity by supplying a principle of case selection: it pares down the universe of potential materials to those that have some direct parallel in domestic constitutional practice.
The pedagogical goal of this model is to help domestic lawyers identify comparative materials that can be used to probe and critique existing domestic law or to develop and refine comparative arguments for domestic use. In other words, the goal is to improve the ability of students to think and act as domestic lawyers by equipping them with a comparative repertoire that can be brought to bear on domestic issues. The underlying normative stance is that domestic lawyers ought to broaden their horizons and adopt a stance of “engagement” with foreign law, for the purpose of enriching domestic law.Footnote 6 The corresponding pedagogical imperative is to emphasize case law from other jurisdictions on hot-button issues in domestic law.
A telltale sign of this approach is a syllabus or textbook organized around substantive topics that correspond to the preoccupations of a domestic audience. Another sign is the wholesale omission of jurisdictions that do not belong to the right club – for example, countries that lack judicial review or are not liberal democracies. Coverage is limited to a peer group of countries that are seen as sufficiently similar and respectable to serve as sources of inspiration or objects of emulation.Footnote 7 Even for countries that make the cut, however, the coverage will be highly selective and map onto domestic debates. Thus, for example, instructors in both the United States and South Korea are likely to spend at least some time on Germany, but they will emphasize different aspects of the German experience. The American instructor might make a point of covering German hate speech jurisprudence but skip over German case law on the prohibition of political parties. For an audience in South Korea – which, like Germany but unlike the United States, has a constitutional court charged with deciding the legality of political partiesFootnote 8 – the emphasis might be the other way around.
The instrumentalism model has several drawbacks that follow directly from its strengths. First, it demands the creation of bespoke teaching materials that do not travel well. By definition, an instrumentalist approach is useful to lawyers who practice constitutional law in a particular jurisdiction, and in order to function, it requires materials tailored to their particular needs. The more that materials are tailored to a particular audience, the more useful they become to that audience – but the less useful they become to other audiences. Lengthy coverage of abortion, for example, may be on point in the United States yet meet with befuddlement from students in China or Japan who struggle to comprehend the degree of controversy surrounding the topic. The more faithful the implementation of an instrumentalist approach, the narrower its appeal.
Second, the simultaneously resource-intensive and jurisdiction-specific character of the instrumentalism model means that it may not be viable everywhere. The viability of the model turns on the existence of a local market with the scale and resources to generate and reward investment in the creation of teaching materials tailored to the needs and interests of local students. A potential result is the emergence of a divide between haves and have-nots. For example, a country like the United States might enjoy a multitude of competing textbooks tailored to domestic tastes, while smaller markets might have to make use of ill-suited materials or pursue a different approach.
Last but not least, instrumentalism is not especially conducive to the development of either a holistic understanding of constitutionalism or a genuinely inclusive and transnational discourse about constitutionalism. It risks balkanization of the field of comparative constitutional law into cliques or clubs of countries that share the same preoccupations and regard each other as instrumentally useful. In the worst-case scenario, every country that is big and wealthy enough will have its own version of “comparative constitutional law,” geared toward its own needs and interests and riddled with blind spots, while those in smaller or poorer jurisdictions that lack robust domestic demand may have little choice but to borrow mismatched materials from a privileged jurisdiction or else pursue a different pedagogical model entirely.
2.2 Tourism
Tourism is paradoxical. It is the direct expression of a desire to see the world and experience new things, yet it often occurs in formulaic or even parochial ways. The desire may be sincere. Alas, the world is a big place: there is much to see, and only so much time in which to see it. In other words, tourists face an acute version of the problem of capacity. So then: what to see?
Notwithstanding the virtually limitless choices at their disposal, tourists tend in practice to be at least somewhat predictable. It is often possible to identify some shared sense of the things that people see, or want to see, because they are the most impressive, or the most memorable, or perhaps simply because they are the things that other people also see, and seeing them is the price of entry into a conversation among those who are, by some standard, “well-traveled.” Some tourism is about checking off the sights that are classics, if not clichés. Other tourism may focus on the latest travel fads or cater to the cognoscenti. Either way, however, tourists tend to focus on certain things and places rather than others – hence the very real phenomenon of the “tourist destination.”
There are two principal criteria for identifying the pedagogical equivalent of tourist destinations – the things and places that a short-term, first-time visitor to the world of constitutionalism might want to encounter. The first is popularity: what do others want to see? The second is merit: what are the “best” things and places to see?
2.2.1 Popularity
In practice, there are certain sights that people want to see simply because so many other people have seen them. Other sights might in some objective sense deserve at least as much attention, if not more, but these are so popular that they feel obligatory and come to define what it means to be “well-traveled.” There is a shared sense of, and appetite for, the greatest hits. On a bus tour of Europe, Paris is bound to be a stop, and in Paris, the bus will almost certainly stop at the Eiffel Tower and the Champs-Élysées. By contrast, it almost certainly will not stop in the northeastern suburbs for a taste of la vie quotidienne in an impoverished postindustrial community, no matter how illuminating or authentic such an experience might be.
This type of tourism is already widely practiced in the world of comparative constitutional law. Students around the world can expect exposure to what has been dubbed an “unofficial canon” consisting of roughly “[t]wo dozen judicial court rulings from South Africa, Germany, Canada, and the European Court of Human Rights alongside a more traditional set of landmark rulings from the United States and Britain and an occasional tribute to India or Australia.”Footnote 9 It is likely that at least some of the cases in this unofficial canon deserve the attention that they receive and are worthy of canonization in principle as well as practice. It is also true, however, that the most popular materials are not necessarily the best or most important materials. Cases can become ubiquitous for reasons that have little to do with their intrinsic importance or superiority for pedagogical purposes, such as their linguistic accessibility, their prestigious pedigree, or their early adoption.Footnote 10 The standard repertoire is thus more akin to a “greatest hits” collection than a true canon.
2.2.2 Merit
Some might turn up their noses at the type of tourism that rewards popularity for its own sake. Perhaps the least sophisticated tourists may be content to visit the equivalent of the Eiffel Tower and the Arc de Triomphe before calling it a day. But many aspire to more than that. Why not attempt, instead, to identify the things that are most deserving of coverage? On this view, the question of what to cover should not be reduced to a mere popularity contest. Instead, it is the responsibility of instructors to use their judgment and expertise to separate the silver from the dross, and to spend the precious commodity of class time on what is best for the students. In other words, the selection criterion ought to be merit, not popularity, and the pedagogical goal is the study of a sacred canon, not a crass greatest hits collection.
A thought experiment might help to guide the creation of a genuine canon of materials that are deserving rather than merely popular. We might imagine a hypothetical “well-read lawyer” and ask ourselves what materials such a person ought to have read.Footnote 11 Whatever the classics happen to be, by this measure, is what belongs in the canon. Who could object in principle to a tourism model of pedagogy, if it is defined thusly? Is the training of well-read lawyers not already at the core of the pedagogical enterprise?
The idea of focusing on “the best” or “the most deserving” materials has obvious appeal. Surely it is the case that, in comparative constitutional law as in any other domain, some things are worth more of our time than others. So why not give those things more time? After all, why would anyone deliberately choose to spend their time covering the “worst” or “least deserving” materials? It is equally obvious, however, that “the best” is diabolically difficult to define, much less judge. What are the “best” materials to study in a field as broad and multidimensional as constitutionalism? Should we choose the most important cases? The most interesting cases? The most revealing cases? The most widely discussed? The most transformative and radical cases, or the most paradigmatic and authoritative cases? Do the definition and weighting of these qualities vary with the audience? How do we evaluate any of these qualities, much less weigh them against each other? As appealing as a merit-based approach may be in principle, the difficulty of these questions suggests that a popularity-based approach has the advantage of being easier to implement in practice.
2.2.3 The Pros and Cons of Tourism
It is not difficult to see the appeal of the tourism model. First, it is an intuitively reasonable response to the problem of capacity. At least in principle, it seems sensible to put together a syllabus or textbook that covers the highlights of the field. The difficulty of determining what are the true highlights in some objective sense may lead instructors in practice to fall back on the most popular materials instead, but generally speaking, the greatest hits are the greatest hits for a reason. Popularity is usually at least a rough proxy for merit.
Second, the tourism model relies on tried-and-true materials with a proven ability to prompt critical comparison and reflection. There are of course other reasons why instructors might keep teaching the same cases year after year, such as a lack of readymade alternatives or sheer laziness, but the repeated use of the same cases does offer at least some evidence of their pedagogical suitability. The wisdom of the crowd can be systematically flawed and incomplete,Footnote 12 but it is better than nothing.
Third, this approach offers a gateway to membership in an epistemic community. Proportionality,Footnote 13 the basic structure doctrine,Footnote 14 the notwithstanding clause,Footnote 15 GrootboomFootnote 16: all of these are shorthand for key ideas, common points of reference for a far-flung scholarly community, and building blocks of discussion and debate. This standard tourist itinerary enables students to be part of a conversation by exposing them to terminology and knowledge that insiders take for granted. The tourism approach is formulaic, but therein lies one of its strengths: there is real value in knowing familiar formulae.
Not least of all, the tourism model will be better suited to certain audiences than the instrumentalism model. It will often be the case that many or even most of the students who enroll in a course on “comparative constitutional law” or “constitutionalism” will not pursue anything resembling the practice of constitutional law, comparative or otherwise. Some may be future corporate lawyers who have selected the course out of curiosity or for a change of pace. Others may not be training for legal practice at all: they may be graduate students preparing for an academic career, for example, or students in a cognate field such as political science. For these students, the instrumentalist approach makes little sense: there is no specific body of substantive material that they can apply professionally and therefore no obvious way of implementing the instrumentalist approach.
These benefits come, however, at a price. Like instrumentalism, tourism yields a distorted and unrepresentative picture of the world. This may be fine for actual tourists who are merely out to enjoy themselves or claim bragging rights, but it may pose more of a problem in a classroom setting if the goal is to actually teach people about the world. Those who approach the subject in this mold will probably end up studying “a small number of overanalyzed, ‘usual suspect’ constitutional settings [and] court rulings.”Footnote 17 The standard tourist itinerary is skewed toward Western liberal democracies and the common law world in particular. The handful of non-Western countries that do receive a significant amount of attention – mainly India, Israel, and South Africa – cannot be described as “representative” of their respective regions. Entire regions – including most of Asia, Africa, South America, and the Middle East – remain “understudied and generally overlooked.”Footnote 18 Reliance on the de facto canon of “usual suspects” constructs and reinforces a distinction between core and periphery, the privileged and the marginalized.
As troubling as these omissions are, there is no guarantee that students will learn even about the jurisdictions that are included in the standard itinerary. Trying to make sense of a landmark judicial decision in isolation is akin to visiting Egypt for an hour to see the Sphinx: the sight may be striking, but the meaning is lost. Yet this is all too often the modus operandi of the tourism model: students are asked to read famous legal texts with little or no exposure to the context. As a result, they risk coming away with an understanding of neither text nor context. In lieu of a coherent picture of another system, they see only bits and pieces.
Refashioning the standard tourist itinerary into a comparative constitutional law canon solves none of these problems and instead introduces its own vexing challenges. One problem lies in the previously noted difficulty of defining what merits canonization. We cannot reasonably expect to construct a canon based on merit if we cannot agree on what constitutes merit in the first place. To be sure, we may find in practice that we are sometimes able to arrive at a consensus about what is “best” or “most worthwhile” without any need for an explicit, agreed definition. Even if we cannot always articulate why certain materials are worthy, we may still be able to agree that they are worthy. This kind of inarticulate agreement, however, calls for skepticism: it is precisely when we cannot give reasons for our agreement that we are most likely to agree for the wrong reasons. Consensus of this type may rest on questionable assumptions and biases – such as an affinity for wealthy or White or English-speaking countries, or a solipsistic preoccupation with courts that pay homage to our own – that go unchallenged simply because alternative perspectives are poorly represented. The collective omissions and prejudices that stem from a lack of diversity should not be mistaken for the collective wisdom of an epistemic community with shared intuitions about merit.
Another problem concerns the impossible tradeoffs surrounding the scope of the canon. Any effort to fashion a canon is likely to run into a Goldilocks problem of being overinclusive, underinclusive, or both. If we err on the side of including everything that arguably deserves canonization, the canon becomes unmanageably large for teaching purposes. Insufficient curation does not solve the problem of capacity but instead passes the buck to individual instructors. On what basis are they to pick and choose from a canon that is far too broad to cover?
Conversely, if the canon – the universe of the worthy – is too small, it will marginalize and exclude in unjustifiable and invisible ways. The content of the corpus may be influential and worthy of study, but it is also nowhere near representative of the range of human experience and wisdom that deserves study. The idea of canon – in the guise of a list of “great works” or a “Western canon” – has already proved treacherous in higher education for this reason.Footnote 19
Much can be learned from the controversy surrounding the “great works” canon in the humanities. At least two of the most serious objections made in that context are ripe for repetition in the context of an equivalent “great cases” canon for comparative constitutional law. The first concerns opportunity cost. The question is not whether traditionally canonical works deserve to be studied in absolute terms, but rather whether they deserve to be studied in lieu of other works that have not been similarly anointed by the prevailing tastemakers. There is a difference between saying that Machiavelli is worth reading, for example, and saying that Machiavelli should be read at the expense of reading Mahatma Gandhi or Martin Luther King, Jr. That difference is of decisive importance because – to return to the root problem of capacity – we simply do not have the capacity to cover everything that deserves to be covered.
The second objection concerns structural bias. The gatekeeping that goes into the construction of a canon is inescapably an exercise of judgment and power. The results may reveal more about the tastes, aptitudes, and power dynamics of those doing the canonizing than about what works are truly great and in what order of greatness. It is for this reason that the idea of canon is divisive. Its response to very real problems of marginalization and exclusion is to double down – to draw and celebrate an explicit line between the deserving insiders and the undeserving outsiders. Efforts to graft broader representation onto existing canon, meanwhile, can reek of tokenism because that is often what they are.
There is no obvious reason why the construction of a “great cases” canon in comparative constitutional law would escape these objections. On the contrary, by reifying a problematic and truncated understanding of what people ought to study, the project of canonization might instead entrench and reinforce some of the worst tendencies of a field already characterized by a poorly justified preoccupation with certain jurisdictions and topics. To be sure, progress has been made as of late to diversify away from the usual suspects,Footnote 20 but that is perhaps all the more reason for a dynamic and expanding field to invest its energy in further growth, exploration, and diversification rather than the inherently backward-looking endeavor of canonization.
2.3 Immersion
A very different approach – and the polar opposite of tourism – is to go native. The idea behind this approach is to immerse oneself in another world and try to see the world through the eyes of the locals, to the greatest extent possible. To continue with the culinary analogy, you might try to figure out what the most popular local dish is, what the ingredients are, why it’s popular, what’s the best way to make it, and so on. The questions are internal, not external to the local enterprise. Along the way, you pick up and indeed place a premium upon whatever cultural information is embedded in, or necessary to understand, the local culinary ways. The inquiry is closer in spirit to fieldwork than to tourism.
The analogous genre of comparative constitutional scholarship and pedagogy aims to see the world through the eyes of the other. The goal is to understand how lawyers in other countries think, where they are coming from, what they find important and interesting and why, what their needs and preoccupations are, and so on. In short, one tries to learn to think like a Japanese lawyer, or a Dutch lawyer, or an Iranian lawyer, and so on.Footnote 21 What do they care about, what do they find interesting and relevant, and why? If one happens to glean insights and lessons along the way that people back home might find useful, that is a welcome benefit, but not the point of the enterprise.
The immersion model addresses the problem of capacity and dramatically pares down the universe of content by prioritizing depth over breadth. The idea is not only to go into greater depth in a smaller number of jurisdictions, but also to learn as much as possible about each jurisdiction before delving into any particular topic. Methodologically, it is associated with thick description, constitutional ethnography, area studies, and sensitivity to political, social, economic, and historical context.Footnote 22 It is naturally suited to those with an interest in a particular region or jurisdiction – assuming, of course, that the instructor and the students agree on what that region or jurisdiction should be. If they do not, then the immersion model could instead prove uniquely frustrating.
In terms of pedagogy, teaching materials that focus on a limited number of jurisdictions and employ a context-rich case-study approach would be appropriate, if not essential.Footnote 23 At the extreme, one might even attempt to use the very same textbooks that foreign lawyers use to learn about their own constitutional systems. What better way to see foreign constitutional law through the eyes of a foreign lawyer than to learn it the same way that a foreign lawyer would? Even if the foreign textbook ultimately proves just too foreign to serve as an instrument of study, it can still serve as an object of study.
Like the instrumentalism and tourism models, the immersion model is highly defensible and might even seem beyond criticism. Who could argue for a superficial rather than sophisticated understanding of other jurisdictions? But the immersion model has very real disadvantages, some of which are a direct function of its advantages. First, its solution to the problem of capacity comes at a tremendous opportunity cost. Time spent learning one jurisdiction in depth is time spent not learning about other jurisdictions at all. It may be perfectly legitimate to strike the depth/breadth tradeoff so strongly in favor of depth, but it is a tradeoff nonetheless. Second, the immersion model is inherently resource-intensive. Instructors who have not been immersed in a foreign system themselves may be hard-pressed to offer their students much of an immersive experience. Credible implementation of the immersion model probably demands major investments in human capital in the form of instructors who have spent time abroad or are themselves foreign.
Third, widespread adoption of the immersion model may replicate and even reinforce the blind spots of the field. Not only does the immersion model narrow the focus to a very small number of jurisdictions, but those jurisdictions are unlikely to be chosen at random or representative of the world at large. The high degree of expertise required by the immersion model will encourage instructors to stick with the jurisdictions they know best. These jurisdictions are likely to be the same ones that they already write about, with predictable results: the same handful of jurisdictions that dominate the scholarly literature will also come to dominate teaching, and students will lack even small doses of exposure to most of the world.Footnote 24 To an even greater degree than under the tourism model, the practical result of the immersion model is likely to be feast or famine – an embarrassment of riches with respect to the usual suspects, and little or nothing on most of humanity.
2.4 Abstraction
A fourth approach might be called the abstraction model. Suppose that, instead of hunting for improvements on one’s favorite dish (instrumentalism), or trying the most famous dishes (tourism), or learning to eat like a foreigner (immersion), you seek a bird’s eye overview of the phenomenon of cuisine. You might set out to see how different cuisines resemble or differ from each other, to systematize the similarities and differences alike, and to identify global trends and patterns. Your survey of the entire world in all its glorious diversity would highlight the resoundingly obvious fact that there is no such thing as one single world cuisine. Yet you might also conclude that, at a certain level of abstraction, there are useful generalizations that can be made about culinary similarities and differences alike.
One might observe, for example, that beef is a common meat dish, and it is usually cooked, to varying degrees. There are prominent exceptions to the general rule that beef is cooked – such as steak tartare if you’re French, kitfo if you’re Ethiopian, or yukhoe if you’re Korean – but the exceptions too can be grouped together. The idea is not that all cuisines the world over are the same, but rather that there exist certain recurring themes and persistent patterns of both similarity and variation that permit admittedly imperfect but still meaningful categorization.
The end result would be akin to a global and generic overview of cooking. It would not be an actual cookbook, because it would be pitched at too high a level of abstraction to tell anyone how to make any particular dish from any particular place; nor would that be the goal. For this reason alone, many people might spurn it as too abstract or general to be of much value. Nevertheless, such a book would still be profoundly useful in the right situations and generate insights that might elude a more granular perspective.Footnote 25 It would equip the reader with basic knowledge, skills, and principles that are useful with respect to virtually any dish and would jumpstart the process of learning specific cuisines and dishes. Such a book would be the equivalent of a Swiss Army knife: it would be no substitute for specialized knowledge and insufficient for in-depth professional work, but it would still be useful as a foundation for beginners across a range of common situations.
Once again, there is an analogous way of approaching the comparative study – and teaching – of constitutional law. This approach aims to equip students with basic skills and knowledge that they can use to find their bearings wherever they happen to run into problems of public law. It is the polar opposite of the immersion model in that it addresses the problem of capacity by sacrificing depth for breadth. It directs us to think about constitutionalism at a relatively high level of abstraction and, ideally, to see the forest for the trees.
Generalization and categorization are the bread and butter of this approach. To the extent that similarities across legal systems are pervasive and prominent enough to permit talk of “generic constitutional law,”Footnote 26 or even constitutional convergence,Footnote 27 the abstraction model thrives on such talk. Likewise, to the extent that certain differences tend to repeat themselves in patterned or structured ways, the abstraction model invites us to group together jurisdictions and speak of “legal families,”Footnote 28 or “legal cultures,”Footnote 29 or “legal traditions,”Footnote 30 or even polarization.Footnote 31
The abstraction model invites skepticism along the following lines. In order for substantive principles or analytical tools of this type to be applicable across a broad range of settings, they must be pitched at a certain level of generality or abstraction. The same level of generality that renders them relevant across all jurisdictions, however, also renders them inadequate for performing fine-grained work in specific jurisdictions. Their breadth reflects a lack of depth that renders them essentially useless. By trying to learn about too many places at once, we risk learning about none of them at all. There is no point in learning some global constitutional Esperanto that promises to be helpful everywhere but is actually useful nowhere.
In principle, these are highly plausible objections, but in practice, they are probably overstated. First, for lawyers who are highly global and mobile, knowing a little about a lot may be the right strategy. Nothing beats a detailed mental map of the local terrain for getting around, but that kind of map is not always available. Knowing that the sun rises in the east and sets in the west may be shallow knowledge, but it is also incredibly useful knowledge because it enables a basic form of navigation everywhere. Sometimes, one simply needs to know where to get started, which requires nothing more than a general sense of which way to head.
Second, legal education in much of the world already involves a high degree of abstraction and generalization across a range of jurisdictions. Consider for example the training of American lawyers. Rarely if ever do mandatory basic courses in US law schools limit themselves to the law of a particular state. The fact that there are important differences from one state to the next does not drive law schools to throw up their hands in defeat and say that they can only effectively teach the law of their respective states. What any self-styled “national” or even “regional” law school does, instead, is to teach recurring themes and doctrines and tools, while also flagging the important and recurring variations and exceptions.
Experience demonstrates that the same approach can be used internationally as well as nationally. There already exist law school curricula that aim to pick out fundamental ideas and problems that recur at the transnational level, and to teach the kinds of arguments and techniques used in response.Footnote 32 Every lawyer in Europe who has ever grappled with the concept of “general principles of EU law”Footnote 33 or “constitutional traditions common to the Member States”Footnote 34 – in other words, every lawyer in Europe alive today – has engaged in such an exercise. So too has every public lawyer who has ever grappled with the explicitly universalistic concepts of “fundamental rights” and “human rights” – which is to say, every public lawyer in the world.
The same intellectual operation that European lawyers perform upon the laws of the member states, and the same operation that human rights lawyers perform upon a combination of national and international law, can also be performed by comparative constitutional scholars upon the laws of the two hundred or so nation-states in existence today. For example, proportionality analysis is not identical everywhere. Books can be – and have been – written about the differences.Footnote 35 Nevertheless, the forms of analysis under this rubric share enough in common that they can be lumped together and taught under the name of “proportionality.”
There are at least two natural audiences for the abstraction model. First, it is a logical choice for those who aspire to be, or to train, “global lawyers.” To take full advantage of an interconnected and interdependent world where transnational law is inescapable, lawyers need to have a view of the big picture and to develop adaptable and “pluralistic” legal minds that are at ease operating both within and across the borders of legal systems.Footnote 36 Second, the abstraction model lends itself to the training of future academics. Secondary materials are a natural fit for the abstraction approach because they tend to be more abstract and theory-driven, and less jurisdiction-specific, than primary materials. The abstraction approach is thus likely to rely heavily on academic scholarship, to the benefit of future academics whose training demands familiarity with such materials anyway.
2.5 Representation
Still another strategy is to focus our limited capacity on a representative sample that showcases the main dimensions of constitutional variation and the diversity of constitutional experience around the world. The level of diversity is daunting: there are old states and new states, big states and small states, democratic states and autocratic states, liberal states and illiberal states, secular states and religious states, centralized and decentralized states, and so on. By focusing on a representative selection of topics and jurisdictions, however, it may be possible to gain a sense of how much constitutionalism varies throughout the world, and in what ways.
The core values of this model are pluralism, diversity, inclusion, and equality. The representation model takes a very broad and pluralistic view of what teachers and scholars alike ought to cover – namely, whatever is actually out there in the world. Its goal is to convey as much of the diversity of the real world as possible within the constraints of capacity. We might think of it as the Noah’s ark model of pedagogy. To learn about the animal kingdom, we do not dwell on fish because they are abundant, or bears because they are strong, or dogs because they are helpful. Instead, we aim for representation of the broadest possible range of species, because each species is a different facet of the thing that we are trying to understand.
The underlying normative stance is that all jurisdictions and all forms of actual constitutional experience are relevant to an informed understanding of constitutionalism. Accordingly, this model does not skip the road less traveled merely because it is less traveled. It does not ignore poor countries as opposed to rich countries, or small countries as opposed to large countries, on the grounds that the experience of smaller or poorer countries is somehow less important or less informative. From the perspective of the representation model, that would be as nonsensical as arguing that the study of richer or taller people is more informative or valuable than the study of poorer or shorter people, or prioritizing the study of whales over the study of dolphins because whales are bigger. Nor does the representation approach exclude illiberal jurisdictions or nondemocratic jurisdictions on the basis that they are too dissimilar or too unpalatable to hold any lessons for us. Constitutional experience dissimilar from our own is embraced, not ignored, because the point is to study constitutionalism in all its shapes and forms, not simply the aspects we find normatively pleasing or instrumentally useful.
This is not to say that all potential teaching materials are equally useful, or that it makes no difference what we choose. In practice, there may be excellent reasons to favor certain issues and places over others for classroom use. Some materials simply offer greater bang for the buck, in the sense that they illuminate particular ideas in an especially clear or memorable way or cover many bases at once. Favoring certain materials on practical grounds for their pedagogical efficiency is, however, not the same as favoring them because they are inherently more important or more worthy.
The representation model is inherently well suited to diverse audiences with wide-ranging needs and interests, as well as those who may simply be unsure of what they want. By definition, a representative sample includes a bit of everything and, therefore, something for everyone. The same holds true of the representation model as well. It is agnostic as to what students should study and why: it avoids potentially controversial assumptions about what is most useful or worthwhile, and its diverse coverage enables instructors to pursue a correspondingly diverse range of questions and problems. Unlike the instrumentalism or tourism model, the representation model is not tailored to the professional needs of a specific type of student, or to any particular sense of what is popular or valuable. As for the tradeoff between depth and breadth of coverage, it steers a middle-of-the-road, “medium-n” course between the deep but narrow “small-n” immersion model and the broad but shallow “large-n” abstraction model.
Like the other models, the representation model is open to both practical and normative objections. On the practical side, it calls for teaching materials that are difficult to collect and curate. Representation of the world’s constitutional diversity and variation in student-friendly form may be easier said than done. The sheer range of experience to be represented is staggering. Fortunately, other fields have experience grappling with the challenge of capturing diversity in an efficient manner, and inspiration can be drawn from their solutions.
For example, social scientists are routinely in the situation of trying to learn as much as they can about large and diverse populations that they can barely begin to explore. In response, they have devised techniques such as stratified sampling: one first divides the population in question into all of the categories (or strata) that ought to be represented, before drawing a sample from each group. The representation model is analogous in more ways than one to an exercise in stratified sampling. Likewise, museums face their own version of the problem of capacity: they have too much to show and not enough space to show it. The typical museum exhibits no more than two to four percent of its collection at any given time.Footnote 37 Within these tight constraints, curation is not simply about selecting the most popular or most famous items; curators seek also to convey the diversity and strengths of their collections, for instance, and to educate as well as entice visitors. Museum curation – like syllabus or textbook curation – is thus a juggling act that incorporates a significant element of judgment. But it is not an impossibility.
Another practical challenge for the representation model is finding student-friendly materials on underexplored topics and jurisdictions. This is the exact opposite of searching for one’s keys under the streetlight: it involves looking for material in the very places where material is most scarce and least accessible. By definition, the areas that are poorly represented are the areas that we have the least capacity to navigate. Assembling appropriate materials is likely to demand international and interdisciplinary collaboration, among other things.
More troubling from a normative perspective is the possibility that the representation model can devolve into tokenism. Nothing can be done about the fact that a small number of specimens must stand in for vast swaths of constitutional experience and entire regions that are fantastically diverse unto themselves: the very concept of representation implies that the few represent the many. What can be done, however, is to ensure that representation is meaningful, in the sense that whatever specimens we do select are studied in a context-rich and non-superficial way. For example, even if we do not commit to full-scale immersion, we can at least opt for the use of case studies that provide adequate context. Contextual understanding not only promotes comprehension, but also serves the goal of meaningful representation. No country is reduced to the status of a mere token if it is given the attention that it deserves. This may mean a reduction in the sheer number of specimens that we can examine, but it may also be a tradeoff worth making if we wish to avoid tokenism in the worst sense of the word.
3 The Representation Model in Action: Constitutionalism in Context
Constitutionalism in Context is, by design, a demonstration of how the representation model might be implemented and what benefits it might offer. In this context, “constitutionalism” is used in its descriptive sense to refer broadly to “the whole of a community’s practices and understandings about the nature of law, politics, citizenship, and the state.”Footnote 38 It is thus capable of assuming as many shapes and forms as there are constitutions and governments in the world. This is the “constitutionalism” that the book aims to showcase, in all its diversity.Footnote 39
The coverage is, accordingly, highly diverse along multiple dimensions, such as subject matter, geographical region, regime type, and economic stratum. Virtually every corner of the worldFootnote 40 and every type of state – large and small, old and new, democratic and authoritarian, liberal and illiberal, secular and religious, rich and poor, common law and civil law – is represented. The volume spans twenty jurisdictions that range in population from 1.2 million (Cyprus) to 1.4 billion (China) and together comprise over a third of humanity. Rather than emphasizing judicial review – as most books doFootnote 41 – Constitutionalism in Context strikes a roughly equal balance among five major areas: constitutional drafting and revision, constitutional adjudication and interpretation, rights, structure, and challenges to liberal democratic constitutionalism. The jurisdictional diversity and the substantive diversity are mutually reinforcing: to look beyond the usual handful of liberal democracies with judicial review enables and even requires us to consider topics other than judicial review, and vice versa.
The result is a volume that represents and reflects the diversity of the world in ways that the field of comparative constitutional law often does not. For example, Asia claims 60 percent of humanity but nowhere near that proportion of the scholarly literature. In this book, it is proportionately represented with over half of the case studies. Likewise, the Global South tends to receive short shriftFootnote 42 but accounts for around half of this volume. Even though one-quarter of the world’s population is Muslim, it is difficult to find more than incidental coverage of the Muslim world in most casebooks. In the case of this volume, the representation is once again proportionate. The five case studies of Muslim countries comprise one-quarter of the total and convey the diversity of the Muslim world, meaning among other things that they are not simply drawn from the Arab world and South Asia.Footnote 43
Take for example the first five case studies in the volume. The first explores the history and meaning of core concepts in the context of China,Footnote 44 while the next four tackle issues of constitutional drafting and revision in the context of Afghanistan,Footnote 45 Nepal,Footnote 46 Hungary,Footnote 47 and Sudan.Footnote 48 Among these five countries, only Hungary appears with much frequency in the existing literature.Footnote 49 The remainder all belong to the Global South, and the majority also belong to the Muslim world. Two hail from Central and South Asia, which are usually represented in the literature by India (and only India); the last is from Africa, which is usually represented by South Africa (and only South Africa). Nor is any of this mere tokenism. The case study approach ensures that each jurisdiction is covered in a meaningful and immersive way that also promotes reader comprehension.
This kind of representation is not just a celebration of diversity for its own sake. Nor is it merely about enabling students around the world, rather than just those in a privileged few jurisdictions, to see their own experiences reflected in the study of constitutionalism and to relate first-hand to the material (although that is certainly a benefit). Rather, there are compelling intellectual and pedagogical reasons to study global phenomena like constitutions and constitutionalism in a correspondingly global manner. Broadening the field of study means not only new knowledge of unfamiliar things, but also fresh insight into familiar things. There is only so much one can learn about constitutionalism through the study of judicial review in Western liberal democracies. Indeed, even Western liberal democracy itself cannot be understood exclusively through the study of Western liberal democracies: the comparative study of a particular genre of constitutionalism demands a point of comparison for the genre itself. Not least of all, breaking free of the usual suspects enables us to explore what we might call boundary cases. Some cases are unusually tricky, and also unusually informative, because they break the mold or push the boundaries of the field. These novel, extreme, or otherwise unorthodox cases require us to apply, test, and reformulate familiar concepts, devices, and strategies in unfamiliar ways.
In one domain after another, venturing off the beaten path adds to our understanding of even the most basic and familiar of concepts and topics. For instance, China is largely absent from the field of comparative constitutional law, in part because two of the core concepts that regulate the scope of the field – namely, “constitution” and “constitutionalism” – have traditionally been understood in ways that exclude the study of nondemocratic and illiberal states. Precisely because it breaks the expectations of liberal constitutionalism, however, China is an excellent vehicle for exploring the permutations and limits of these concepts: it effectively has two written constitutions – one for the state and one for the ruling party – and its combination of one-party rule and socialist ideology renders efforts to construct a normatively appealing and coherent “constitutionalism with Chinese characteristics”Footnote 50 no small challenge.
Underexplored jurisdictions and boundary cases yield fresh insights into traditional questions of structure and rights as well. For example, constitutional arrangements that provide for some measure of subnational autonomy are the subject of an extensive literature centered on federalism. But the constitutional rubric of “One Country, Two Systems” under which Hong Kong rejoined China takes the idea to new extremes. Can two diametrically opposed and wildly imbalanced constitutional systems – one a socialist and authoritarian behemoth of 1.4 billion people, the other a capitalist and liberal city of 8 million people – coexist indefinitely within the same country, and if so, how? Or consider affirmative action and racial discrimination, both mainstays of the vast literature on rights. In the case of Brazil, these topics come with a provocative and illuminating twist.Footnote 51 What is to be done about systemic racial inequality rooted in centuries of slavery if elites deny the very existence of racial distinctions on account of an equally long history of racial mixing? What are the implications for affirmative action if the identity of the nation rests on an ideological denial of not only the reality of racism, but also the concept of race itself?
It is not just illiberal regimes, or nondemocratic states, or the Global South, that tend to be overlooked at considerable cost to our understanding of constitutionalism. Even Western liberal democracies may slip through the cracks if they do not play to the preoccupations of the field. The Netherlands is a case in point. For decades, countries have rushed to adopt judicial review – and the field of comparative constitutional law has emphasized judicial reviewFootnote 52 – on the understanding that judicial enforcement of constitutional constraints on state actors is instrumental to the protection of democracy and human rights.Footnote 53 In this volume, the Netherlands represents a category of countries that do not fit this narrative and are usually left out of the conversation as a result – namely, thriving liberal constitutional democracies that lack judicial review altogether.Footnote 54 This omission is self-evidently problematic. How can we understand the role of judicial review in protecting constitutional democracy or human rights if we ignore the cases that cast doubt on its role? What could be more essential to a comparative perspective on judicial review than a point of comparison that has no judicial review?
Every chapter in this volume gives life in some way to the core claim of the representation model: there are fundamental and revealing lessons to be had, for novices and experts alike, in every corner of the world. The road less traveled is often where the most valuable insights and thought-provoking problems are to be found – from the strategies of rights activists in authoritarian societies,Footnote 55 to the implementation of unitary abstractions like “citizenship” and “nationality” in binational and divided states,Footnote 56 to the globalization-driven rise of transnational private regulation as a shadow body of public law in the developing world,Footnote 57 to the inherent tension in traditional societies between the dual imperatives of respect for international law and respect for constitutional autochthony,Footnote 58 to the paradoxes inherent in a constitutional system that aims both to facilitate pragmatic governance and to embody divine law,Footnote 59 to the sheer abundance and variety of hybrid political-legal arrangements that render the distinction between constitutions, treaties, and peace agreements increasingly indistinct,Footnote 60 and so on, throughout the volume. Cases like these, drawn from the frontiers of the field, simultaneously introduce and problematize standard concepts and received wisdom. In doing so, they equip students from the outset with a critical perspective on the field itself.
4 Conclusion: The Need for Pedagogical Pluralism
There are countless other ways that a book like this could have been curated. That is as it should be. It is a feature, not a flaw, of the representation model that there is no single correct way to represent constitutional diversity. The representation model is pluralistic not only in its understanding of what constitutionalism is, but also in its understanding of what aspects of constitutionalism must be taught. It thrives when multiple scholars sample the world in different ways, pursue different understandings of what counts as diversity and what calls for representation, and highlight dimensions of variation that others have yet to explore. The complexity of the subject supports and indeed demands different takes on the subject. A pluralistic understanding of constitutionalism calls for a pluralistic approach to the study of constitutionalism. Likewise, a diversity of attempts to represent the diversity of constitutionalism is the apotheosis of the representation model.
Methodological pluralism is all the rage in the social sciences these days, and for good reason.Footnote 61 There is obvious wisdom not only in selecting the right tool for the job, but also in recognizing that the same job may lend itself to a variety of tools, and in testing whether different tools lead to the same result. But the case for pedagogical pluralism is as compelling as the case for methodological pluralism, especially in the field of comparative constitutional studies. Given the diversity of both the subject matter and the audience, it is hard to imagine how any pedagogical model could be strictly superior to all others, all the time. The representation model may be compatible with a variety of pedagogical settings and objectives, but that does not mean it is the most suitable option in every case.
What counts as an appropriate model in any particular context will depend on the resources at hand, the needs of the audience, and the goals of the instructor. Pedagogy, like methodology, cannot be reduced to a single correct approach. What both pedagogy and methodology demand instead is mindful choice, informed by an understanding of the available options. The risk is that we fail to choose at all – that we sleepwalk into a particular model by default or habit without any awareness, much less explanation, of what choice has been made and why. On a pluralistic view of pedagogy, what matters most is not what we choose, but how we choose it.
There are good arguments to be made for targeting the best-known aspects of constitutionalism, or the most celebrated aspects, or taking a deep dive into a particular place, or seeking a bird’s eye view of the whole. In a world where unexpected treasures and revealing twists lie behind any number of doors, however, there is also much to be said for opening as many doors as we can.
