Ran Hirschl, in his book Comparative Matters (OUP, 2014), speaks of a “renaissance in comparative constitutional law”. This renaissance, he says, is evident in the proliferation of a more cosmopolitan sensibility, a greater openness to engage with —and perhaps learn from — the constitutive laws of others. In that book, Hirschl predicted that the future of the field would be invigorated by breaking down the barriers between constitutional law and other disciplines. He envisioned the development of a much more empirically oriented field, one more indebted to social science methodology, one that might be called “comparative constitutional studies”.
Consistent with Hirschl’s predictions, I think the influence of other disciplines has greatly enriched the comparative study of constitutional law, and I would welcome more of it. But I also worry about the renaissance. The Italian Renaissance was not only a time of great achievements in art and science. It was also a violent time of warring factions and principalities. My worry about our renaissance in comparative constitutional law is this: just as we are breaking down boundaries between law and other disciplines, we may also be reproducing an unfortunate methodological factionalism within the field of comparative constitutional law itself.
Consider reactions to Adam Chilton and Mila Versteeg’s recent book How Constitutional Rights Matter (OUP, 2020). Chilton and Versteeg explore the extent to which the de jure constitutional protection of rights has a systematic effect on the de facto protection or realization of rights. They find that, other things being equal, rights that are assigned to or practiced by organizations are more consequential than rights with a more individualistic ambit. They propose a theory to explain this finding: organizations help to resolve the coordination and collective action problems that complicate rights enforcement—organizations help to identify and draw attention to putative rights violations, they help to mobilize popular protest against those violations, and they provide a supportive infrastructure for constitutional litigation.
How Constitutional Rights Matter has attracted a good deal of praise but also some hostile criticism. Madhav Khosla has written a scathing review in the Harvard Law Review. Notably, Khosla’s criticism is directed in large part against the entire genre of scholarship that Chilton and Versteeg’s book is taken to represent. Khosla identifies this genre with “positivism” and argues that the key feature of this kind of research is what he calls “a Martian perspective”—that is to say, research in this genre is like a Martian observing Earth from a distance: “By focusing on behavior from the outside, the positivist approach in comparative constitutionalism carries the danger of not seeing human actions as those performed by individual agents who reason and act in a specific context” (p. 2138).
I think Khosla misreads the spirit and implications of Chilton and Versteeg’s book. The book does not deny the importance of context or human agency. Rather, the point is basically that individuals tend to be more powerful when they act together than when they act alone. In other words, there is strength in numbers. This is not a Martian perspective at all; I would say this is really a very down to earth perspective. But what worries me isn’t so much that Khosla’s review is wrong about one book. What worries me is the polarizing pattern of thought that is evident in Khosla’s pejorative use of the term “positivism” and in his attack on what he calls “the Martian perspective”. According to this pattern of thought, research is sorted into opposing binary categories: scientific vs humanistic inquiry; causal inference vs cultural interpretation; quantitative vs qualitative methods, etc. These categories might have some limited practical utility (for categorizing journals or organizing workshops) but taking them too seriously can impoverish our research for at least two reasons.
First, good causal inference in the best tradition of the social sciences often (and perhaps always) requires attention to qualitative data and matters of cultural interpretation. Demonstrating a robust and statistically significant association between two variables, even with the most sophisticated modelling, is not satisfying unless there is also a compelling accompanying narrative about the mechanisms and processes that connect a putative cause with some outcome of interest. In comparative studies of constitutional law, building that sort of narrative will often turn on in-depth knowledge of case studies and the cultural context of the constitutions in question (the beliefs, values, myths, symbols, etc. of the people involved). Best efforts at causal inference will therefore rely on both qualitative and quantitative observations. In short, we cannot isolate ourselves from questions of cultural interpretation without also stifling our efforts at causal explanation
Second, the converse—the idea that cultural interpretation can or should displace causal explanation—is also a mistake. Paul Kahn in his book The Cultural Study of Law (University of Chicago Press, 1999) endorses such a project, a project that self-consciously purports to eschew questions of causality (along with normative questions) to focus only on what Kahn calls the cultural analysis of law. In a later interview for the German Law Journal, Kahn explains how he understands his project:
CAL [Cultural Analysis of Law] is first of all a humanistic inquiry, not a social science… Its interpretive method tends to focus on the single legal artifact—for example, a legal opinion—rather than on aggregates of such artifacts. It seeks to construct the macrocosm of the legal imaginary out of the microcosm of the legal decision. Its interest is not in outcomes, but in bringing to light the way in which that outcome situates itself in an entire world of meaning (p. 289).
I have no objection in principle to the sort of work Paul Kahn does. My concern is with the austere injunction to separate interpretation from explanation. Indeed, it has been claimed that Kahn’s interpretive method is ‘superior to the Large-N [quantitative] approach’ — a claim that seems to imply that these approaches are mutually exclusive and in competition with one another, rather than potentially complementary. I don’t see what is to be gained by this austerity and I think a lot might be lost. For one thing, it seems to me that the interpretation of the meaning of some practice in the fullness of its context (a “thick description” as Clifford Geertz called it) is implicitly a causal account of why people do a thing they do (or don’t do a thing they don’t do). Indeed, Geertz, in his great book The Interpretation of Cultures (1973) explains that the purpose of “thick description” is to “sort out the structures of signification” that produce a situation. I cannot see how “sorting out the structures of signification that produce a situation” is not itself a kind of causal inference. Furthermore, meaning is not a static property; meaning changes and, when it does, questions of causality arise (questions about why a change of meaning has occurred or questions about the consequences of such a change). Why should we ignore these questions in favour of static semiotics? The relationship between cultural change and legal change is a fascinating topic and one that has been (and should be) an animating concern for comparative legal scholarship. This topic is multidimensional; we need different approaches to illuminate its different dimensions.
Despite my concerns about the dangers of methodological factionalism, I am still optimistic that the field of comparative constitutional law will ultimately outgrow the unhelpful pattern of thought that pits causal explanation against cultural interpretation or qualitative methods against quantitative methods. On this point, I am encouraged by what has been happening in the digital humanities. In adopting an array of computational methods for their purposes, digital humanists have not stopped being humanists. Rather, they transgress the old barriers between quantitative methods and humanistic inquiry; they glide back and forth between close reading (the sort of micro-analysis that humanists have always done) and what Franco Moretti calls “distant reading” (the macro-analysis that large datasets and computation empower).
In his recent book Cultural Analytics (MIT Press, 2020) Lev Manovich celebrates our budding ability to transcend the opposition between the old paradigm of science (with its focus on general regularities) and the old paradigm of the humanities (with its focus on the particular or unique). Instead, as Manovich says, the strengths of both can (and should) be combined:
The humanities can contribute their strengths—focus on the particular (e.g., single artifacts and authors), the meanings of the artifacts, and orientation toward the past. And the sciences can give us theirs—focus on the general (e.g., large-scale patterns), use of the scientific method and mathematics, and interest in predicting the future (p. 45).
Within this new hybrid paradigm, we can attend to central tendencies as well as the eccentric. I expect (and hope) that young scholars of comparative law — having come of age in a world in which cultural meaning and “big data” are so entangled — will be attracted to this pragmatic sensibility and reject the limiting binary oppositions of the 20th century.
Posted by Alex Schwartz, University of Glasgow
This piece relates to Alex Schwartz’s keynote speech on “Comparison in Empirical and Computational Legal Studies” at the PhD Workshop of the British Association of Comparative Law on 2 May 2023.
Suggested citation: A Schwartz, ‘Against Methodological Factionalism in Comparative Constitutional Law’, BACL Blog, available at https://british-association-comparative-law.org/2023/11/10/against-methodological-factionalism-in-comparative-constitutional-law/
British Association of Comparative Law 