The field of comparative constitutional law has witnessed a significant shift towards positivism, employing large-N statistical analyses to draw causal inferences about the impact of legal provisions across nations. This approach, exemplified by Adam Chilton and Mila Versteeg’s How Constitutional Rights Matter, seeks to determine whether and how constitutional rights translate into real-world outcomes. While raising crucial questions about the efficacy of rights and the role of institutions, this positivist turn necessitates a critical examination of its underlying assumptions and methodologies. This article explores the core challenges of causality, interpretation, and agency that confront this “science” of comparative politics.
The Problem of Causality: Beyond Correlation
The positivist approach relies heavily on establishing correlations between legal provisions (e.g., the prohibition of torture) and observed outcomes (e.g., actual instances of torture). However, correlation does not equal causation. The presence of redundant causation, where multiple factors contribute to an outcome, makes it difficult to isolate the specific impact of a legal provision. Even with rigorous statistical controls, the inherent complexity of social phenomena allows for alternative explanations that large-N studies struggle to capture. For instance, while a study might find no correlation between torture prohibitions and torture rates, a concurrent rise in social acceptance of torture could mask the preventative effect of the legal prohibition.
Furthermore, the reliance on counterfactual dependence, a cornerstone of causal inference, faces challenges in the context of redundant causation. The fact that an outcome persists even in the absence of a specific legal provision doesn’t negate the possibility that the provision played a causal role, albeit insufficient by itself to alter the outcome. The absence of a sufficient condition doesn’t equate to the absence of a necessary one.
The Challenge of Interpretation: Beyond Behavior
Positivist comparative constitutionalism, in its focus on observable behavior, often overlooks the crucial role of interpretation in shaping legal realities. Studies that code constitutional texts based on the presence or absence of specific rights, without delving into their interpretation within different cultural and legal contexts, risk mischaracterizing the actual content of those rights. Identical wording can have vastly different meanings depending on the interpretive framework within which it operates.
The disregard for limitation clauses, often justified by the difficulty in quantifying their impact, further exacerbates this problem. Limitation clauses, through interpretation, can fundamentally alter the scope and meaning of enshrined rights, rendering a purely textual comparison misleading. This neglect of interpretive nuances undermines the validity of ideological mappings and comparisons of constitutional texts across diverse legal systems. Similarly, studies attempting to quantify “sham constitutions” by measuring the gap between constitutional guarantees and practice might be capturing differences in interpretation rather than genuine discrepancies between theory and reality.
The Question of Agency: Recognizing Human Action
By adopting an external, behaviorist perspective, positivist comparative constitutionalism risks overlooking the agency of individuals and groups in shaping legal and political outcomes. Human actions are not merely reflexive responses to external stimuli but are driven by internal reasons, motivations, and deliberations. Constitutionalism itself is an act of collective agency, reflecting a society’s conscious effort to structure its political life.
Ignoring this inherent agency leads to a diminished understanding of the dynamic interplay between law, culture, and politics. Legal rules do not operate in a vacuum but are internalized and acted upon by individuals within specific social contexts. By neglecting these contextual factors and focusing solely on observable patterns, positivist approaches fail to grasp the complex mechanisms through which legal change occurs.
Conclusion: The Limits of a Science of Comparative Politics
While large-N statistical analyses can offer valuable insights into broad trends and patterns, their limitations in addressing the complexities of causality, interpretation, and agency raise serious questions about the feasibility of a purely scientific approach to comparative politics. A deeper engagement with context, recognizing the role of human agency and the nuances of interpretation, is crucial for developing a more nuanced and meaningful understanding of constitutionalism and its impact on societies across the globe. The pursuit of comparative understanding necessitates a move beyond the “Martian” perspective, embracing methodologies that delve into the specificities of legal and political cultures.
