Academic journal article Boston University Law Review

Comparative Constitutional Law, Legal Realism, and Empirical Legal Science

Academic journal article Boston University Law Review

Comparative Constitutional Law, Legal Realism, and Empirical Legal Science

Article excerpt

INTRODUCTION

Ran Hirschl's book is both an important book and one whose main theses seem correct to me. Being important and being right do not necessarily go together, but in this case, they do. In addition, the book is a good read: it is immensely learned, both about historical and contemporary materials; it is thesis-driven, in the sense that there are interesting arguments being clearly made; and it is on the whole intellectually generous, in its appreciation of many works by contemporary scholars including work that is not about causal inference but rather, for example, about concept formation and reconstruction.

I. APPRECIATION

It is an important book because it lays out Hirschl's vision of the possibilities of comparative constitutional law (and, implicitly, of law more generally) becoming a better scholarly discipline.1 Hirschl is plainly one of the leading methodologists among comparative constitutional scholars, and this- his fully developed synthesis of an argument he first began making in his 2005 article2-is important for this reason alone.

Among his principal claims are these: First, he argues that there are significant benefits to comparative constitutional law from its scholars (and presumably lawyers and courts) being more careful about defining the claims being made and (especially for scholars) giving more attention to the various forms of empirical research that social science techniques, including capacity for large scale data crunching, provide.3 Second, Hirschl emphasizes the significance of "case selection"-what is being compared, across what countries, to what ends-in a wide variety of forms of inquiries in comparative constitutional law.4 Third, Hirschl argues, case selection and the development of knowledge should not be bounded only by already familiar jurisdictions largely, though not entirely, of the "West."5

With all of these major arguments I am in agreement. I am also in agreement with Hirschl's acknowledgment that some important work in comparative constitutional law-on concept formation or on thick description of foreign systems, for example-is not necessarily about causal inference.6 As he is both careful and generous to acknowledge, good work in comparative constitutional law does not necessarily require social science methods, but does require knowledge of law and legal institutions and capacities for insight and imagination.7 And as other scholars have argued, conceptual, philosophical, analytical, and jurisprudential questions remain important in the study of comparative constitutional law.8

But for years I have referred SJD and LLM students to Hirschl's earlier article on case selection in comparative constitutional law,9 which forms the core of one of this book's chapters,10 more than any other single work. Hirschl's analysis and discussion of this point are enormously valuable for those engaged in genuinely comparative research projects; and his methodological argument is well elaborated here with terrific examples. His arguments on case selection, methodology, and comparison need not be limited to comparisons among different national states: think of the issue of comparing states and state laws in the United States. Consider, as examples, studies of capital punishment and deterrence,11 or of social welfare rights, effective levels of social spending, and social well being.12

Having noted some of this book's many contributions, I now want to reflect on two questions that the book provoked as I read and thought about it. First, where does the move towards more methodological rigor in this field of legal studies fit into the broader contemporary landscape of both law and social science? Second, how do Hirschl's claims fit into the intellectual history of U.S. legal studies-and in particular, the earlier engagements with social sciences in Pound's "sociological jurisprudence,"13 and the Legal Realists' interests in empirical research?

II. THE CONTEMPORARY LANDSCAPE: OF LAW, SOCIAL SCIENCE, AND A "LITTLE LEARNING"

In this section I try to bring something of a comparative lens to Professor Hirschl's critiques of the contemporary state of comparative constitutional law. …

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