When I became the editor of the Law & Society Review in 2001, among my goals was a desire to further internationalize the Review by reaching out to scholars from around the world and by fostering comparative research that looked at important legal processes that are affecting many societies. I believed that an obvious candidate for a special issue that would advance these goals would revolve around the topic of “the rule of law.” I thought sufficient time had passed since the end of the Communist regimes in Central and Eastern Europe that we could begin to gain some perspective concerning the role law had played in the subsequent transition of these societies. As I thought about who might be a good person to head up this issue, one person stood out. I called Kim Scheppele and asked if she might be interested. Thus began the conversation that led to this issue.
Kim soon persuaded me that the focus of the issue should move away from the amorphous concept of the rule of law and focus especially on what she and others were coming to call constitutional ethnography. Events in central Europe and the former Soviet Union were not the only interesting areas of research. For example, during this same period we could observe the creation of a “constitution of Europe” through the ever-closer union of European nations.
In the original call for papers for this issue, Kim explained, “The purpose of the issue is not to examine doctrinal developments taken in isolation, but rather to embed the study of constitutional government in a larger social, economic, historical, and cultural context.” Kim proposed the following set of questions that contributors might wish to address in their articles:
1. What affects the willingness of political leaders to be bound by constitutions?
2. Why has activist judicial review developed in a variety of countries?
3. How do lawyers, judges, and laypeople understand what a constitution means, and how are these understandings related to each other?
4. What is constitutional expertise and how is it constituted?
5. What do constitutions mean as public symbols? How is constitutionalism a form of public culture?
6. What is the social history of constitutional ideas?
7. Have social movements (for example, for race or gender equality) been able to invoke constitutional rhetoric to assist their causes?
8. Do mass publics support constitutions? Do political elites?
9. How are national histories or collective memory shaped by or linked to constitutions?
10. What causes constitutional failure—or constitutional rebirth? How are constitutions written, and why do they collapse?
11. What is the relationship between domestic constitutional law and international law?
12. How do constitutionally regulated actors (presidents, prime ministers, MPs, constitutional court judges, state governors, central bankers, etc.) act to reinforce or undermine the constitution?.
There can be little doubt that these are among the central questions we should be asking in this corner of the sociolegal studies enterprise. By my quick count, the articles touch on at least eight of these 12 questions and, of course, also touch on many important questions that we failed to list at the outset. I believe that this special issue marks an important milestone in the development of this area of research, and I hope it will encourage others to extend and expand on the work reported here.
