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A dubious Montesquieuian moment in constitutional scholarship : reading the empirical turn in comparative constitutional law in light of William Twining and his hero
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Kuo, Ming-Sung (2013) A dubious Montesquieuian moment in constitutional scholarship : reading the empirical turn in comparative constitutional law in light of William Twining and his hero. Working Paper. Coventry: University of Warwick. Warwick School of Law Research Paper (Number 2013/27).
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Official URL: http://ssrn.com/abstract=2342312
Abstract
In this essay, I take a closer look at the empirical turn in contemporary comparative constitutional law to see whether its ‘global approach’ to comparative law suggests the realisation of what Twining calls a ‘genuinely global perspective.’ I argue that it falls short because constitutional empiricists provide a refracted scientific view of constitutional law. I first show that they 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 to live out Montesquieu’s genuine empiricist spirit. Neither climate nor soil nor coding can tell the spirit of constitutional laws, the pursuit of which should be the spirit of serious constitutional scholarship.
Item Type: | Working or Discussion Paper (Working Paper) | ||||
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Divisions: | Faculty of Social Sciences > School of Law | ||||
Series Name: | Warwick School of Law Research Paper | ||||
Publisher: | University of Warwick | ||||
Place of Publication: | Coventry | ||||
Official Date: | 2013 | ||||
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Number: | Number 2013/27 | ||||
Number of Pages: | 25 | ||||
Status: | Peer Reviewed | ||||
Publication Status: | Published | ||||
Access rights to Published version: | Open Access (Creative Commons) | ||||
Open Access Version: |
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