On Law, Politics, and Judicialization

By Martin Shapiro; Alec Stone Sweet | Go to book overview

4 Testing, Comparison, Prediction

To sustain a viable social science of law and courts, we need to generate testable propositions, develop appropriate research designs to test those hypotheses, and engage comparative materials. 1 In this chapter, we discuss and use three strategies for building theory through testing and comparing, each of which follows from the construction of an a priori, deductive model of various aspects of adjudication.

The first strategy, adopted by Stone Sweet in 'The European Court and Integration', employs econometric and other modes of statistical analysis as well as qualitative 'process tracing' to evaluate specific causal propositions about how European integration and the construction of the legal system have proceeded. This research design, quite rare in the social sciences, constitutes a mixed means of testing: the analyst (1) derives hypotheses deductively from materials developed in prior comparative research, (2) collects data to operationalize the theorized variables, (3) tests the hypotheses through analysing the data quantitatively, and (4) cross-checks these results and explores other theorized relationships or dynamics, qualitatively. As discussed briefly below, good fortune and collaboration made such research possible.

The other two strategies are associated with the comparative method and the crucial case study. Both designs are particularly useful for building a social science of law and courts, since the experimental and statistical methods are often unfeasible. As adopted in Shapiro's book Courts (1981a), the 'crucial case method' (see Eckstein 1975) involves searching the literature of comparative law to identify that historical situation most likely to falsify a given proposition, that is, one where Shapiro's theory would predict an outcome quite contrary to that described in the existing, authoritative literature.

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On Law, Politics, and Judicialization
Table of contents

Table of contents

  • On Law, Politics, and Judicialization iii
  • Acknowledgements vii
  • Contents ix
  • List of Figures x
  • 1: Law, Courts, and Social Science 1
  • Political Jurisprudence 19
  • Judicialization and the Construction of Governance 55
  • Appendix 88
  • 2: Judicial Law-Making and Precedent 90
  • Towards a Theory of Stare Decisis 102
  • Path Dependence, Precedent, and Judicial Power 112
  • 3: Constitutional Judicial Review 136
  • The Success of Judicial Review and Democracy 149
  • Constitutional Politics in France and Germany 184
  • 4: Testing, Comparison, Prediction 209
  • The Giving Reasons Requirement 228
  • Appendix 290
  • 5: Judges and Company 292
  • Globalization of Freedom of Contract 296
  • Islands of Transnational Governance 323
  • 6: Abstract Review and Judicial Law-Making 343
  • References 376
  • Index 407
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