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
25 Pages Posted: 20 Oct 2013
Date Written: 2013
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
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