Avoiding the Common Wisdom Fallacy: The Role of Social Sciences in Constitutional Adjudication

International Journal of Constitutional Law 11, pp. 294-318, 2013

MPI Collective Goods Preprint, No. 2011/22

27 Pages Posted: 6 Sep 2011 Last revised: 27 Jul 2015

See all articles by Niels Petersen

Niels Petersen

University of Muenster – Faculty of Law; Max Planck Institute for Research on Collective Goods

Date Written: September 1, 2011

Abstract

More than one hundred years ago, the U.S. Supreme Court started to refer to social science evidence in its judgments. However, this has not resonated with many constitutional courts outside the United States, in particular in continental Europe. This contribution has a twofold aim. First, it tries to show that legal reasoning in constitutional law is often based on empirical assumptions so that there is a strong need for the use of social sciences. However, constitutional courts often lack the necessary expertise to deal with empirical questions. Therefore, I will discuss three potential strategies to make use of social science evidence. Judges can interpret social facts on their own, they can afford a margin of appreciation to the legislator, or they can defer the question to social science experts. It will be argued that none of these strategies is satisfactory so that courts will have to employ a combination of different strategies. In order to illustrate the argument, I will discuss decisions of different jurisdictions, including the United States, Canada, Germany and South Africa.

Keywords: constitutional law, constitutional theory, comparative law, Canada, Germany, South Africa, United States, social sciences, empirical studies, proportionality, uncertainty, margin of appreciation, deference

Suggested Citation

Petersen, Niels, Avoiding the Common Wisdom Fallacy: The Role of Social Sciences in Constitutional Adjudication (September 1, 2011). International Journal of Constitutional Law 11, pp. 294-318, 2013, MPI Collective Goods Preprint, No. 2011/22, Available at SSRN: https://ssrn.com/abstract=1923012 or http://dx.doi.org/10.2139/ssrn.1923012

Niels Petersen (Contact Author)

University of Muenster – Faculty of Law ( email )

Germany

HOME PAGE: http://www.nielspetersen.net

Max Planck Institute for Research on Collective Goods ( email )

Germany

HOME PAGE: http://https://www.coll.mpg.de/56547/prof-dr-niels-petersen.html

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