Almost everyone in the field of comparative constitutional law is in favor of interdisciplinary law/social science scholarship. But there have been very few attempts thus far to examine how such research should proceed in practice. Is true interdisciplinary synergy possible or is it more a question of using the insights of each discipline to test the blind spots of the other? This paper explores this question through a case study of the potential benefits of interdisciplinary scholarship on constitutional decision-making. The point of such research, the paper argues, must ultimately be to understand what constitutional judges committed to liberal-democratic constitutionalism can do to promote this ideal in the context in which they find themselves. By synthesizing the insights of empirical political science and normative legal scholarship, the field should be able to say more than ‘be strategic’, on the one hand, or ‘be principled’, on the other.
In recent years, we can observe a turn to more empirical research in comparative constitutional law. This research is being conducted both by legal scholars and by political scientists. The paper has a two-fold aim. First, it gives an overview of the state of the art of empirical research in comparative constitutional law. It focuses on two main areas – the study of constitutional design, on the one hand, and research on judicial decision-making in the domain of constitutional law, on the other. Second, it provides a critical assessment of this scholarship. In particular, it argues that most of the studies on constitutional design do not adequately address the issue of unobserved variable bias. While these studies are still valuable in order to advance empirical research within comparative constitutional law, they should not be used without caution as possible basis for policy recommendations.
If law is about governing behavior, then the digitalization of all avenues of life will deeply impact the law, legal profession, and ultimately legal scholarship and education. This is not only due to the fact that current law is challenged by new products and services or by powerful new non-state actors with most effective means to influence behavior on their hands; but more profoundly the way we think about law, the mechanisms it applies and the way public and private actors influence behavior will be deeply impacted by the mass individualization digitalization enables. Individualized contracts or election campaigns, social credit systems and automatization of legal services all have repercussions on the law itself and what we will mean by ‘law’ in the not-so-distant future. Many of those innovations are based on empirical approaches, and lawyers will need to be qualified to understand these, not only to be apt professionals but to play their role in upholding the rule of law.