A Dubious Montesquieuian Moment in Constitutional Scholarship: Reading the Empirical Turn in Comparative Constitutional Law in Light of William Twining and His Hero

Transnational Legal Theory, Forthcoming

Warwick School of Law Research Paper No. 2013/27

25 Pages Posted: 20 Oct 2013

See all articles by Ming-Sung Kuo

Ming-Sung Kuo

University of Warwick - School of Law

Date Written: 2013

Abstract

In this essay, I take a closer look at the empirical turn in contemporary comparative constitutional law to see whether its ‘global approach’ to comparative law suggests the realisation of what Twining calls a ‘genuinely global perspective.’ I argue that it falls short because constitutional empiricists provide a refracted scientific view of constitutional law. I first show that they focus attention on institutional design in written constitutional codes. I then discuss how this methodological written constitutionalism points to a legal formalism in constitutional empiricism, which is aimed at excluding subjective judgments from constitutional studies to safeguard its claimed scientific character of comparative constitutional law. I suggest that constitutional empiricists extricate themselves from the spell of formalism and to live out Montesquieu’s genuine empiricist spirit. Neither climate nor soil nor coding can tell the spirit of constitutional laws, the pursuit of which should be the spirit of serious constitutional scholarship.

Keywords: comparative constitutional law, empirical legal studies, methodological written constitutionalism, neo-formalism/new legal formalism, William Twining, Montesquieu

Suggested Citation

Kuo, Ming-Sung, A Dubious Montesquieuian Moment in Constitutional Scholarship: Reading the Empirical Turn in Comparative Constitutional Law in Light of William Twining and His Hero (2013). Transnational Legal Theory, Forthcoming; Warwick School of Law Research Paper No. 2013/27. Available at SSRN: https://ssrn.com/abstract=2342312

Ming-Sung Kuo (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry, CV4 7AL
United Kingdom

HOME PAGE: http://warwick.ac.uk/fac/soc/law/people?id=4945a0b0c6550cc21bbcc89cf0b570af

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