Methodologies of Comparative Constitutional Law: Functional Approach The Max Planck Encyclopedia of Comparative Constitutional Law (forthcoming)

This encyclopedia entry conceptualizes methodology in comparative constitutional law as divided into consumption-side and production-side methodologies. Many of the labels in the field refer to types of consumption of comparative law by constitutional judges and constitution-writers—expressivist, universalist, functionalist. Other labels refer to types of production by scholars situated in the academy—black-letter, historical, contextual, classificatory, critical. The functional approach, one form of consumption by constitutional judges and constitution-drafters, uses the law of other jurisdictions to explore various alternatives to solving common constitutional problems. Once the alternatives are exposed, the decision to adopt a foreign judicial doctrine or legal text is driven not by the criterion of universality, but rather by reference to the normative metrics of the legal actor’s jurisdiction. The functional approach is illustrated by constitutional cases from the US, Australia, South Africa, and Israel. I conclude by noting that within the broader discipline of comparative law, what is known as the “functional method” signifies something quite different—the use of common social problems to target the law of interest, which a priori can be found in any branch of law, not just what bears the formal label of “constitutional” law. Based on this technique, I argue that in certain constitutional domains, administrative law and Islamic law should figure. This carries benefits both for legal scholars and for legal actors, who might be doing constitutional law even though they do not sit on constitutional courts, but rather on administrative and Sharia courts