Hirschl on Case Selection in Comparative Constitutional Law

Ran Hirschl (University of Toronto, Department of Political Science) has posted "The Question of Case Selection in Comparative Constitutional Law" (U Toronto, Legal Studies Research Paper No. 901700 and American Journal of Comparative Law, Vol. 53, No. 1, pp. 125-155, Winter 2005) on SSRN. This is the abstract:

Although intellectual interest in the international migration of constitutional ideas has been growing steadily over the last decade, the field of comparative constitutional law remains under-theorized and lacks a coherent methodology. In fact, 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 canonical constitutional law scholarship. Genuinely comparative, problem driven, and inference oriented scholarship is still difficult to come by. Most leading works in the field continue to lag behind the social sciences in their ability to trace causal links among pertinent variables, let alone to substantiate or refute testable hypotheses. 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 paper addresses this lacuna by contrasting the approaches of legal academics and political scientists to the same sets of comparative constitutional phenomena.

The paper is divided into three main sections. I begin by identifying four main types of scholarship labeled as comparative in the field of constitutional law and politics: (i) freestanding, single-country studies mistakenly characterized as comparative only by virtue of dealing with any country other than the author's own; (ii) comparative reference aimed at self-reflection through analogy, distinction, and contrast; (iii) comparative research aimed at generating thick concepts and thinking tools through multi-faceted descriptions; and (iv) studies that draw upon controlled comparison and inference-oriented case selection principles in order to assess change, explain dynamics, and make inferences about cause and effect through systematic case selection and analysis of data. While the study of comparative constitutional law by legal academics has contributed significantly to concept formation and the accumulation of knowledge drawing upon the former three categories of comparative analysis, it has, for the most part, fallen short of advancing knowledge through inference oriented, controlled comparison.

In the second part of the paper I discuss a few basic principles of case selection employed by inference-oriented studies in the field of comparative constitutional law and politics: (i) the most similar cases logic; (ii) the most different cases logic; (iii) the prototypical cases principle; (iv) the most difficult cases principle; and (v) the outlier cases principle. I subsequently illustrate the successful application of these principles by examining a few recently published and genuinely comparative works dealing with the foundations, practice, and consequences of constitutionalization worldwide. Problem driven and inference oriented comparative public law scholarship, I argue, should look more like these works.

I conclude by suggesting that while there are many valuable approaches and methods to study comparative public law, the aspiration to make valid causal claims based on comparative research warrants adherence to inference-oriented principles of research design and case selection. Attention to, and reliance on, such inference-oriented principles of case selection may help scholars studying the migration of constitutional ideas to make valuable causal claims as to why, when, and how such migration is likely to occur. It would also allow the field as a whole to move beyond the multiple-description method commonly deployed in comparative legal analyses toward the next level of comparative inquiry: causal inference through controlled comparison.

Judicial Dialogue & Jones v. Saudi Arabia (UKHL 14 June 2006)

A brief note on the recent House of Lords decision in the case of Jones v. The Kingdom of Saudi Arabia of June 14th 2006. The case concerned claims for damages against Saudi Arabia by private individuals alledgedly severely and systematicallytortured by Saudi government officials. The main issue raised by the claims, in the words of Lord Bingham, concerned "the relationship (...) between two principles of international law"; the principle of sovereign immunity and the principle "of more recent vintage, but of the highest authority among principles of international law" that condemns and criminalises the official practice of torture, "requires states to suppress the practice and provides for the trial and punishment of officials found to be guilty of it". The House of Lords' task, therefore was to "consider the balance currently struck in international law between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other's jurisdiction". The Lords ultimately come to the conclusion that the claims of Jones et al do indeed come within the scope of the defence of sovereign immunity. Furthermore, the House of Lords, following the ECHR's Al-Adsani ruling, finds that the right to a fair trial (art. 6 of the Convention) does not oblige the United Kingdom to override the immunity defence.

What's most interesting about the decision, in my view, is the extensive citation of foreign judgments in the Lords' Opinions. Obviously, the topic - the content and limitations of sovereign immunity - is a familiar one in public international law and has often been considered by courts the world over. This meant both that foreign opinions were especially relevant and that there was plenty of material available. The Lords cite (in no particular order, and I may have still missed some):

-The International Court of Justice

-The International Criminal Tribunal for the Former Yugoslavia

-The European Court of Human Rights

-The Supreme Court of Canada

-The Ontario Court of Appeal (and the lower Superior Court)

-The US Supreme Court

-The US Court of Appeals for the 9th Circuit

-The US District Court for Massachusetts

-The Italian Court of Cassation

-The German Federal Supreme Court

-The Greek Court of Cassation

Such extensive citation will be warmly received by commentators who have long been pressing courts to abandon 'cherry-picking' practices whereby they cite only those foreign opions favourable to the conclusion to be adopted. It does, however, lead to a problem that may be relatively new but that will certainly not go away; what to do with foreign opinions that come to different conclusions than the one favoured by the forum? If not citing them makes courts vulnerable to the charge of selective citation, citing them means courts will have to explain why they chose to come to a different outcome. It may be thought that distinguishing could provide a way out. The foreign ruling could be found to have been handed down in different circumstances, or to have answered a slightly different question. Such a reply, however, immediately raises the follow-up question of why the foreign opinion has been cited in the first place.

It seems that courts serious about their comparative law enterprise will, at some point or other, have to formulate explicit disagreement with foreign judgments. In a model whereby foreign judgments have some level of 'persuasive authority', contrary rulings will have to be proven unpersuasive. But even when the foreign judgments are 'mere information' - an overview of possible solutions to cases like the one at hand - some form of critique will be inevitable. These critiques will be all the more noticeable as foreign rulings that the forum does agree with, will have to be explicitly positively appraised to legitimize their influence.

This is exactly what happens in the Jones judgment, where it is fascinating to see the language employed in evaluating the wide range of foreign opinions cited. So, for example, the Italian Court of Cassation's decision in Ferrini v. Federal Republic of Germany exhibits "the same bare syllogistic reasoning" (Lord Hoffmann) found also in the ECHR's minority opinion in Al-Adsani. The Canadian decision's in Bouzari v. Islamic Republic of Iran, by contrast, are "more closely-reasoned" while elements of a German Federal Supreme Court decision are, respectfully, found to be "a little artificial".

I think it may be legitimately asked whether the relatively new and perhaps still fragile 'global judicial dialogue' is strong enough to incorporate such explicit criticism rather than mere polite neglect. It's not easy, though, to see a way out. Suggestions?

For those interested in the substantive issues at stake in Jones: the TransAtlanticAssembly Blog has an interesting post.

People interested in the study of the practice of judicial borrowings, my friend Elaine Mak has written this summary of an interesting conference in The Hague of two weeks ago that dealt with this topic (among other things).