David S. Law
Washington University in Saint Louis - School of Law; The University of Hong Kong - Faculty of Law; Washington University in Saint Louis - Department of Political Science
THE OXFORD HANDBOOK OF EMPIRICAL LEGAL RESEARCH, Peter Cane & Herbert Kritzer, eds., 2010
Washington U. School of Law Working Paper No. 10-02-05
This chapter from the forthcoming Oxford Handbook of Empirical Legal Research offers an overview and critical assessment of the current state of empirical research on constitutions, constitutionalism, and constitutionalization. First, it describes how empirical research on “constitutions” has evolved into two distinct bodies of literature focused on different phenomena. Scholars from different disciplines have pursued distinct research agendas and favored different methodological approaches. De facto or “small-c” constitutions - meaning the collections of rules, practices, and understandings, written or unwritten, that describe how state power is actually allocated and exercised - have been the subject of a vast amount of social science research, much of which exhibits a quantitative or statistical bent. By contrast, the study of de jure or “large-c” constitutions - namely, formal legal documents that proclaim their own status as fundamental or higher law - has been largely the domain of legal scholars, who have tended to favor a qualitative, case-study approach.
The chapter next surveys the empirical literature on two topics that are, or ought to be, of considerable interest to those who study large-c constitutions. The first is that of whether constitutions matter. There is an enormous body of normative constitutional scholarship on the question of what kinds of institutional arrangements and personal rights and freedoms should be written into large-c constitutions. Much of this scholarship rests upon the implicit premise that formal constitutions are not mere parchment barriers but instead do in fact shape and constrain the structure and behavior of governments. This premise, however, finds only weak support in the existing empirical literature, particularly with respect to the efficacy of written rights guarantees.
The second topic of interest is that of the relationship between judicialization and constitutionalization. Empirical scholars have in recent years paid increasing attention to the related phenomena of judicialization, or the expansion of judicial policymaking at the expense of other government institutions, and constitutionalization, or the process by which formal legal instruments (primarily large-c constitutions) become effective sources of constraint upon state power and government action. These two phenomena are symbiotic. By characterizing policy questions as constitutional, courts claim exclusive authority over those questions and thus expand their power to make policy. In doing so, however, they also extend and reinforce the efficacy of the constitution. Thus, to explain how and why judicial power expands is also to illuminate one way in which large-c constitutions become effective as a practical matter.
The chapter concludes by discussing the methodological challenges faced by scholars who wish to do empirical research on constitutions, large-c and small-c alike, and by exploring possible solutions. These challenges boil down to the problems of inadequate data and causal complexity, which plague all of social science but are, for a variety of reasons, especially pronounced in the context of constitutions. Neither of the methodological approaches most commonly employed by empirical constitutional scholars - namely, case studies and statistical analysis - can by itself satisfactorily address these challenges. One solution is to practice methodological pluralism: by employing a combination of approaches, scholars can use the strengths of one approach to compensate for the weaknesses of the other. Another solution is to investigate innovative approaches such as laboratory experimentation and computer simulation. The chapter offers examples of how computer simulation, and agent-based modeling in particular, can be used to study constitutional phenomena that are difficult to investigate using traditional techniques. Given both the formidable methodological obstacles that constitutional scholars face and the limitations of the techniques that they currently use, such methodological possibilities demand greater attention.
Number of Pages in PDF File: 24
Keywords: Constitutional Law, Constitutions, Constitutionalization, Constitutionalism, Empirical Legal Studies, Judicialization, Methodology, Computer Simulation, Agent-Based Modeling
JEL Classification: C1, C4, C9, H11, K39
Date posted: February 20, 2010 ; Last revised: April 10, 2011