Constitutional Ethnography

Constitutional rules, perhaps more so than other legal rules, are embedded in and conditioned by wider historical, political and socioeconomic conditions that must be properly appreciated. To access these interrelationships, some scholars have utilised constitutional ethnography, which entails ‘the contextually detailed, empirical study of particular constitutional systems, along with their histories, polities, cultural meanings, and social supports’ (Scheppele, 2004).

Interviews, observation, and archival and documentary research are the primary means of gathering data in constitutional ethnography. Ethnography by its nature is exploratory and does not begin with a firm hypothesis or a general over-arching theory to be tested. Rather, it involves in-depth examination of a particular social context to attain a deeper understanding of the mechanisms and strategies by which governance is attempted and experienced. Thus, in seeking to understand how constitutional systems operate, constitutional ethnography embraces context as more than background assumption.

A notable aspect of ethnographic research is the composition of a holistic view of the group under study, which is comprised of a larger overview of the ‘cultural scene’ (in this instance, the legal dispute) presented in all of its complexity (Creswell, 2013). In conventional ethnography terms, a ‘culture-sharing’ group is identified. In a constitutional ethnography, this will be the actors involved in a dispute that touches on a matter of constitutional law, such as the judiciary, government institutions, NGOs, companies, community activists, Indigenous groups, lawyers, and litigants. Obtaining data from a wide cross-section of society provides a deeper understanding of the dynamics of a dispute within a particular constitutional legal order, while forging a set of generalizations about the perceptions of participants across a wide spectrum of society. The final product is a holistic ‘cultural portrait’ of the various groups that incorporates the views of the participants (emic) as well as those of the researcher (etic).

Overcoming methodological limitations

Constitutional rights research often relies on qualitative approaches, in part due to the difficulties inherent in measuring the effectiveness of rights protection. However, simply undertaking doctrinal analysis or functional comparison of legal systems (in the case of comparative law research) may not shed light on the complex interrelationships between law and other societal elements, even if undertaken through case study analysis. Constitutional ethnography offers a means of overcoming some of the methodological difficulties in measuring human rights outcomes, as information about individual perceptions and experiences can provide credible and reliable data regarding the effectiveness of different modes of rights protection.


While constitutional ethnography may emphasize particular contexts, it still leaves room for theoretical extrapolation. Theory-building comes not from testing hypotheses but instead from noting complex relationships in one setting and determining whether other settings can be understood in similar terms. The thorough, nuanced analysis of a carefully selected single constitutional system may yield informative ‘ethnography-like’ accounts of constitutional transformation in a given polity, which may lead to general insights or lessons for other similarly situated constitutional settings (Hirschl, 2014).

Comparative Constitutional Ethnography

When such detailed ethnographic studies are undertaken in relation to two or more countries that differ in some way, they can offer opportunities for comparative analysis. One can conduct an ethnography and still compare, without betraying the need for specificity, locality and thickness that ethnography entails (Scheffer, 2008). A comparative constitutional ethnography may involve a search for a detailed understanding of how different cultural, social and political contexts deal with common constitutional rights dilemmas, focusing on a single practice carried out in different jurisdictions. However, the end result is not a universal theory or model that subtracts the unique elements of each system, but rather insight into how constitutional regimes actually operate in relation to rights, thereby contributing to a more general theory of constitutional functioning.


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