Methodological Individualism and Substantive Disagreement in Constitutional Reasoning
23 Pages Posted: 31 Oct 2019
Date Written: October 1, 2019
Although it is common knowledge that judges in different legal systems have different conventions as to how they justify their decisions and some judges are more while others are less willing to articulate their positions, we did not have exact data about these differences in constitutional reasoning. Our research proposed a simple index (MI) to measure the level of methodological individualism. Drawing on the research design of the Conreason project, we used this index to compare the practice of 14 constitutional courts in landmark constitutional cases. In addition, we also measured the level of disagreement (JD) within these 14 courts and by introducing the concept of disagreement factor (DF) we analysed to what extent substantive disagreements contribute to the rise of the number of separate opinions and, hence, to the rise of methodological individualism.
Keywords: constitutional interpretation, legal reasoning, judicial opinions
JEL Classification: K10, K40
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