18 August 2006

Anne Meuwese's Comment on Hirschl's "The Question of Case Selection in Comparative Constitutional Law"

Many thanks to Anne Meuwese (Leiden & Exeter) for this comment on the Hirschl paper notified last week. Anne's discussion raises many interesting points with regard to the importance of causal inference focussed research in constitutional law scholarship and the relationship between constitutional law scholarship and political science more generally. Have a look especially at the questions she identifies at the end of her contribution.


The paper was an interesting read but certainly failed to convince me (as a PhD student in constitutional law who is very fond of political science). My first reaction was ‘yes, but the mere fact that interesting questions of causality relating to constitutional topics can be raised, is not enough reason for scholars of comparative constitutional law to engage in full-fledged political science research when the answers they are really after have nothing to do with causality.” I tried to elaborate this response a bit in the comment below.

Hirschl’s main argument is that in order to make valid causal claims based on comparative research it is necessary to adhere to inference-oriented principles of research design and case selection and that therefore scholars of comparative constitutional law should pay more attention to these principles. However, making causal claims is almost never what scholars of comparative constitutional law are after (not taking into account the occasional slip of the pen).

Now, Hirschl acknowledges this - even if only at the very end of his paper - when he states that “adherence to quasi-scientific, inference-oriented principles of research design is certainly not the only valuable mode of social, let alone legal inquiry” (Hirschl 2006, p. 154). However he then goes on to argue that there is “no apparent a-priori or systemic reason why the study of comparative constitutional law could not engage in a more explanation-oriented mode of scholarship.”

But the question is: is there a good reason for them to engage in scholarship of that kind? I would argue that there is no such reason and that in many cases there are even good reasons for them not to do so.

Hirschl supports his argument by pointing out that certain strands of legal scholarship (evolutionist, functionalist and law & economics approaches but also comparative law more generally) have turned to explanation rather than mere description or taxonomy. But these are ‘approaches’ for a reason; they stand apart from mainstream legal scholarship as such and I suspect many people working in those fields would identify themselves as ‘social scientists’ rather than as ‘legal scholars’.

Hirschl also proposes some possible questions about the migration of constitutional ideas which would require a research design that applies inference-oriented principles of case selection. Many of these questions certainly are of great interest to constitutional law scholars, but they are also real political science questions - by their very nature different than the sort of questions scholars of constitutional law would ask. Take for example the question of “which polities and courts are more receptive to transnational migration of constitutional ideas than others, and why?” Whereas scholars of comparative constitutional law would be interested to know the answer to this, they will usually choose to put their own research efforts into questions of competence, coherence, authority, legitimacy and hierarchy.

This is in my view the weakness of Hirschl’s argument: he seems to overlook the fact that legal scholars have their own research goals and their own big questions which they seek to answer which often benefit from comparison but do not require causal inference. Legal research, including constitutional law scholarship, does not stop at mere description or classification. What it usually tries to do is to find legal solutions for legal problems and comparative method is often applied in that light. The confusion might stem from the fact that even if legal scholars look outside their own legal system, their analysis will still – at least in the final instance - remain inside of the law.

But even if one goes along with the contention that causal inference is “arguably, the ultimate goal of scientific inquiry, quantitative or qualitative, positivist or hermeneutical” (Hirschl 2006, p. 153) it is also the most problematic of all research goals. If it was harmless and easy to engage in causal inference, certain scholars of comparative constitutional law might like to do some social science theorising and data processing on the side. But real, credible causal inference requires hard work and an extensive knowledge of methodology. And there seems to be a permanent trade-off between parsimony and validity in any endeavour to explain social phenomena by unravelling their causes.

But I do agree with part of Hirschl’s argument. Scholars of comparative constitutional law can certainly be more rigorous in their choice and application of methodology. Lawyers too often use the special nature of legal scholarship as an excuse to escape any reflection on methodology. Hirschl’s paper could make a great contribution here. But I worry that his assumption that a move towards causal inference would improve the work of comparative constitutional scholars, makes it too easy for legal scholars to dismiss his often very valuable suggestions. Legal scholars can learn from political science research methods – and Hirschl’s paper can be a good starting point - but in the end they need to use and develop methods which serve their own research purposes.

Could it be that the real problem lies elsewhere? Perhaps scholars of comparative constitutional law should read (not produce!) more comparative politics literature. There are many ways in which the findings of scholars of comparative politics can contribute to constitutional law scholarship. For example, research on the causes of migration of constitutional ideas can uncover new constitutional problems that can be the focus of (legal) research by scholars of constitutional law. And being trained as a legal scholar it can be difficult to know how to read and appreciate political science literature once you have started reading it. To a lawyer a political science article often looks like a legal article in which the author has simply ignored the case law. The two disciplinary traditions are that far apart. And vice versa – and I see Hirschl’s paper as an illustration of this – political scientists often cannot see the value of legal articles because they are so focussed on causal inference.

But that only means the two groups should work a little bit harder to cooperate. The questions “[w]hat is the impact of the migration of constitutional ideas on methods of constitutional interpretation and reasoning?” (Hirschl 2006, p. 154) is an example of a question that is inbetween the two disciplines and that perhaps a constitutional law scholar and a political science scholar could well tackle together. And perhaps for this purpose indeed “neither advanced knowledge of the epistemological foundations of social inquiry nor mastery of complex research methods is required” (Hirschl 2006, p. 154) on the part of the scholar of comparative constitutional law.

I would love to receive comments on this topic either on this blog or via e-mail at the University of Exeter. A related topic that I am currently very interested in (and could well undermine my own argument as presented above): the difference between legal scholarship and constitutional law scholarship. Since I started working at a politics department 6 months ago I have come to believe that constitutional law scholarship is a lot closer to legal scholarship than I thought previously. But I am still not sure if that is because most scholars –being trained as lawyers - make it so or because of its nature. In the above I wrote that legal scholars are after legal solutions for legal problems. If that is true then what is it constitutional law scholars are after? The same? Constitutional solutions for constitutional problems? Legal solutions for constitutional problems? Or in some cases even constitutional solutions for legal problems?

Anne Meuwese
PhD candidate in law at Leiden University and research fellow in politics at the University of Exeter.

No comments:

Post a Comment