Despite the tremendous renaissance of comparative constitutional law, the comparative aspect of the enterprise, as a method and a project, remains under-theorized and imprecise. Methodological self-awareness has not been one of the field’s strengths. In comparative constitutional law (and Constitutionalism in Context more generally) the term “comparative” is often used indiscriminately to describe what, in fact, are several different types of scholarship, each with its own meanings, aims and purposes. What is more, various vocational, jurisprudential, academic, and scientific stakeholders involved in practicing the art of constitutional comparison. This chapter will explore the various types, aims and methodologies deployed in exploring constitutional phenomena comparatively across time and space. In so doing, it will identify some gaps in the field’s contemporary methodological matrix and suggest ways in which these deficiencies may be addressed and overcome.

From its beginnings as a relatively obscure and exotic subject studied by a devoted few, comparative constitutionalism has developed into one of the more vibrant and exciting subjects in contemporary legal scholarship, and has become a cornerstone of constitutional jurisprudence and constitution-making in an increasing number of countries worldwide. This tremendous renaissance in comparative constitutional inquiry reflects a confluence of factors. Chief among them are extensive democratization and constitutionalization trends worldwide; the internalization of the legal profession and of legal education; and the rise of communication and information technologies that facilitate considerably the diffusion of constitutional concepts, and foster cross-national jurisprudential dialogue. The result has been an ever-expanding interest among scholars, judges, practitioners and policymakers in the transnational migration of constitutional ideas, and in the comparative study of constitutions and constitutionalism more generally.

Transformative changes have been taking place in the constitutional domain. Over the last few decades, the world has witnessed the rapid spread of constitutionalism and judicial review at both the domestic and supranational levels. Constitutional supremacy, a concept that has long been a major pillar of the American political order, is now shared, in one form or another, by over 160 countries and several supranational entities across the globe. Most of these polities can boast the recent adoption of a constitution or a constitutional revision that contains a bill of justiciable rights and enshrines some form of active judicial review. Consequently, constitutional courts and judges have emerged as the key translators of constitutional provisions into guidelines for public life, and as a main forum for articulating and dealing with foundational political questions that define the boundaries of the collective or cut through the heart of entire nations. Meanwhile, the international migration of constitutional ideas has grown exponentially (Choudhry 2006), accompanied by the rise of what may be termed ‘generic’ constitutional law – a supposedly universal, Esperanto-like discourse of constitutional adjudication and reasoning, primarily visible in the context of negative or ‘first-generation’ rights and liberties (Law 2005; Law and Versteeg 2011). In this new constitutional environment, even bastions of agnosticism toward American-style high-voltage constitutionalism and judicial review cannot entirely avoid some of the developments taking place internationally (Jackson 2010; Tushnet 2009).

Alongside this considerable expansion in the ‘traditional’ constitutional realm, a phenomenon that scholars have termed the ‘new constitutionalism’ has emerged (e.g. Gill 1995a, 2003). This phenomenon often refers to the largely pernicious spread of a set of quasi-constitutional supranational treaties and institutions that place global economic governance beyond democratic reach, and promote uneven development by privileging transnational corporations at the expense of the world’s economic hinterlands. As Stephen Gill observes, ‘[n]ew constitutionalism is a macro-political dimension of the process whereby the nature and purpose of the public sphere has been redefined in a more privatized and commodified way … it can be defined as the political project of attempting to make trans-national liberalism, and if possible liberal democratic capitalism, the sole model for future development. It is therefore intimately related to the rise of market civilization’ (Gill 1995a: 412).

One of the fascinating but seldom-explored phenomena in comparative constitutional law is the growing reliance on constitutional courts in the non-secular world to block the spread of religiosity or advance a relatively universalist interpretation of sacred texts. The American constitutional system has successfully maintained a stable secular order in one of the most religious societies in the West. Although the specter of religiosity is haunting Europe once again, European national high courts, from Germany to Britain to France, assumed the role of guardians of secularism against the perceived threat to the concept of a religiously neutral public sphere. Likewise, Turkey's adherence to a strict separation of religion and state (at least until the recent constitutional amendments) has allowed the Turkish Constitutional Court to exclude religious practices, parties, and policies from the purview of Turkey's political sphere. The Supreme Court of India has drawn on the “basic structure” doctrine to maintain and advocate a secularist vision of the Indian Constitution amid a markedly religious setting and increased political presence of Hindu and Muslim religiosity. Its jurisprudence on personal-status law has sounded a clear voice for uniformity and standardization in that domain. In short, despite the many pertinent differences, the constitutional jurisprudence of countries that adhere to a strict separation of religion and state reveals a clear secularist tendency and vision of religion as confined to the private sphere.

A notably harder challenge to the constitutional containment of religion is posed by constitutional orders that defy the Franco-American ideal of separating religion and state along private-public lines. At least 1 billion people now live in polities or subnational units that not only designate a single religion as the “state religion” but also enshrine that religion and its interlocutor as “a” or “the” source of legislation (meaning that legislation must comply with principles of that religion), incorporate religious precepts in law, grant religious tribunals jurisdiction over important aspects of life, public and private, in addition to the tremendous symbolic weight religious edicts often carry. At the same time, religion and its institutions and interpretive hierarchy are expected to comply with overarching constitutional norms and are subject to review by constitutional courts and judges.

These are relative heydays for comparative constitutional law scholarship. After a near century of embedded parochialism and intellectual stalemate, the field has recently seen a certain renaissance. From comparative inquiries of constitutional transformation to sophisticated analyses of comparative constitutional jurisprudence, the field has made a tremendous leap forward over the last few years. Even the US Supreme Court – perhaps the last bastion of parochialism among the world's leading constitutional courts – has recently joined the comparative-reference trend. But in spite of the growing interest in comparative constitutional systems, too little has changed in the epistemology and methodology of comparative constitutional law. Fundamental questions concerning the very purpose and rationale of comparative inquiry (and how that enterprise is to be undertaken) remain largely outside the purview of mainstream constitutional law scholarship. Genuinely comparative, problem-driven, and inference-oriented scholarship is still difficult to come by. More specifically, comparative constitutional law scholarship produced by legal academics often overlooks (or is unaware of) basic methodological principles of controlled comparison, research design, and case selection. The chapter addresses this lacuna by contrasting the approaches of legal academics and political scientists to the same sets of comparative constitutional phenomena. It suggests that while the study of comparative constitutional law by legal academics has contributed significantly to the accumulation of knowledge through the development of novel concepts and thinking, it has, for the most part, fallen short of advancing knowledge through tracing causal links among pertinent variables, let alone contributing to theory building through substantiation or refutation of testable hypotheses.

Open any traveler's guidebook about Israel, and you will soon find a photo of a young woman in military uniform carrying a weapon. She is the female soldier. Just like her male peers, she is subject to mandatory conscription to the defense forces when she reaches the age of eighteen. Her image is an emblem of gender equality. Unfortunately, the status of women in Israel does not match the mythology this image suggests. This gap between myth and reality makes Israel a living laboratory for the study of women's rights. As a Jewish and democratic state, it hosts a constant battle over its religious, national, and cultural identity, as well as engaging daily with internal and external challenges to its very existence. In each of these struggles, women's rights, among others, are tested to the limit. This chapter provides an overview of the current status of women's rights in Israel. Our intention is to analyze how, why, and under what conditions individual women and feminist organizations have been successful in advancing the gender equality agenda through constitutional rights jurisprudence and legislative initiatives. We also hope to evaluate the limits of such change by addressing the nature of the enduring inequalities that Israeli women still face in navigating the obstacles of a deeply divided society.

Our discussion is divided into three major sections. We begin with an outline of pertinent elements of Israel's unique constitutional system.