Empirical Legal Studies, Comparative Constitutional Law and Legal Doctrine: Bridging the Gaps

Abstract

This article looks into the viability of approaches to engaging in empirical comparative constitutional legal analysis. Quantifying the words contained in constitutions, while by no means irrelevant, can only be an element in this. Their actual importance according to case law and other empirical data highlights the need for caution in drawing far-ranging comparative conclusions from such quantifications for constitutional legal systems. It is argued that the key phenomenon driving these systems can be found elsewhere: In the paradigmatic concepts of a particular system of legal scholarship, other epistemic communities, or society at large. However, while this phenomenon can be empirically studied, any meaningful study necessitates intimate knowledge of legal scholarship as the meaning of communicative symbols involved can strongly diverge from the paradigmatic concepts of (other) social sciences. Central and East European (cee) constitutional legal systems can be of special interest in this regard due to both close similarities and considerable variations of both positive law and the paradigms of legal scholarship and political thought. Ultimately, an empirical analysis requires a holistic and systematic approach to understanding constitutional systems, including positive law and the paradigms driving it analyzed with quantitative as well as qualitative tools. Otherwise, the push for empirical comparative constitutional legal research may thwart its goal of accurately depicting the observable world, and, in the case of quantitative analyses, can run counter to the goal pursued.