Small-c Constitutional Rights

Adam Chilton
Mila Versteeg

Abstract

Although constitutions lay out the fundamental principles by which countries are governed, identifying exactly which legal materials are considered constitutional is not a straightforward task. This is for two reasons. First, there is no systematic evidence about the relative importance of countries’ formal, written constitutions—the “Large-C” constitution— versus their broader body of constitutional law derived from sources like judicial decisions, treaties, and conventions—the “small-c” constitution. Second, it is often difficult to establish which legal materials are definitively part of a country’s small-c constitution. We investigated the nature and relative importance of small-c constitutional rights protections by fielding a global expert survey to 220 experts from 123 countries. The results illustrate that although the Large-C constitution is the primary source of constitutional rights in a majority of countries, the small-c constitution also plays a significant role, especially in older constitutional systems. Perhaps surprisingly, whether a country has a civil law or a common law tradition is only weakly associated with the shape and form of the small-c constitution in most countries.