Constitutional law as science: a proposal of some minimum conditions

Given the multiplicity of schools and currents of thought within constitutionalism and in political science and political thought in general, is it possible to develop a common terminology that contributes to our mutual understanding in the field of constitutional law? Can we build a common ground in terms of concepts, of a language or a vocabulary that allows us (if only) to pretend that we are doing something that can be called science? Or are we, as scholars, bound to be nothing more than just citizens with the ability to develop a higher level of discourse, which nonetheless does not permit to be contrasted or trusted in order to consider us as a “scientific community”? The paper will examin this questions and suggest a set of alternatives to tackle them, by way of proposing a number of (minimun) conditions that should allow us to talk about something like “the science of constitutional law”.

Philosophical cherry picking in the construction of constitutional concepts

Drawing on philosophical studies seems to be a common practice among researchers specializing in public law, particularly in constitutional law. Since the constitution decides (or serves as a basis to decide) on the fundamental political issues in a State, it is often argued that the understanding of such issues requires to examine its foundations, thus leading our research into the field of philosophy. But how do we discern which philosophical works or doctrines are relevant for our research? And with which methodological tools do we face these philosophical studies? The purpose of the paper is to reflect on these questions, with special emphasis on the way in which constitutional scholarship draws upon works on philosophical concepts that also happen to be constitutional terms. To do so, I use the notion of human dignity as a “case study”, in order to illustrate the meaning and possible implications of these reflections by reference to a specific concept.

Materialist dialectics and constitutional form

The purpose of this paper is to develop the foundations of a critical dialectical research method for constitutional theory. To achieve this purpose, we will ground this research on the philosophy of internal relations and the contemporary theory of historical materialism. As a starting point, we argue that the object under study in the social (and legal) sciences cannot be conceived as an isolated and static thing. On the contrary, the object is always an aspect of the interconnected and dynamic whole. We will also claim that dialectics is very useful when studying the legal phenomenon and particularly constitutional issues, because it allows us to become aware of the fact that the “legal form” cannot be isolated from the general social formation. Finally, using abstraction, we will try to identify a set of elements that will allow us to conceive the constitution as a political category that echoes the capitalist social formation.

Trust and mistrust as opposing approaches in constitutional law research

This paper uses the concepts of trust and mistrust to describe two antagonistic manners of approaching and analyzing constitutional matters. Conditioning the whole subsequent research process, these basic ideas usually imply fundamental differences in the way the corresponding research results will be sought. It is therefore necessary to consider them from the standpoint of its methodological influence on the way constitutional law as a disciplinary field with its own (scientific?) purposes is conceived. Assuming that constitutional law deals with the problem of the political, one should specifically reflect on how the efforts in our field are permanently determined by the researcher’s position within the trustful/mistrustful spectrum, and to that extent, how these efforts can be conducted in accordance with the requirements that its object -the political- demands. Consequences for interdisciplinary work and for the definition of a research ethos derive from these questions too.