A Dubious Montesquieuian Moment in Constitutional Scholarship: Reading the Empirical Turn in Comparative Constitutional Law in the Light of William Twining and his Hero

Abstract

This essay takes a close look at the empirical turn in contemporary comparative constitutional law, analysing whether the ‘global approach’ to comparative law suggests the realisation of what Twining calls a ‘genuinely global perspective’. I argue that this suggestion falls short of realisation because constitutional empiricists provide a refracted scientific view of constitutional law. I first show that empiricists focus attention on institutional design in written constitutional codes. I then discuss how this methodological written constitutionalism points to a legal formalism in constitutional empiricism, which is aimed at excluding subjective judgments from constitutional studies to safeguard its claimed scientific character of comparative constitutional law. I suggest that constitutional empiricists extricate themselves from the spell of formalism and live out Montesquieu's genuine empiricist spirit. Neither climate nor soil nor coding can reveal to us the spirit of constitutional laws, the pursuit of which should be the spirit of serious constitutional scholarship.