The embrace of empirical legal studies, a trend that has transformed legal scholarship in the United States and Israel, is now gaining significant traction worldwide. This shift is particularly evident in the study of constitutional rights, where traditional normative and theoretical approaches are being supplemented, and at times challenged, by empirical methods. The trend is not confined to any one region but is a part of a broader, global movement in the legal academy.
Areas like environmental law clearly demonstrate the value of empirical methods. Here, the impact of legislation is directly observable and quantifiable, from emission reductions to improvements in wildlife diversity. This measurable approach is crucial, offering a concrete assessment of policy efficacy that complements normative legal discussions.
The Complex World of Constitutional Rights Law
In contrast, constitutional rights law presents unique challenges for empirical analysis. The nature of rights, varying widely across different times and jurisdictions, and the often aspirational language used in legal provisions, adds layers of complexity to empirical study. How can the effectiveness of constitutional rights be measured in tangible terms?
Despite these hurdles, recent empirical studies have made significant inroads. Starting in the late 1990s, researchers began examining the impact of international human rights treaties, navigating through complex methodological landscapes. This marked the beginning of a challenging yet transformative journey in applying quantitative methods to constitutional rights law.
“How Constitutional Rights Matter”: A Seminal Contribution
In this context, the monograph How Constitutional Rights Matter (OUP, 2020) by Adam Chilton and Mila Versteeg, which I reviewed for the European Constitutional Law Review, stands as a landmark. This work not only proves the feasibility of empirical methods in the realm of constitutional rights but also sheds light on how these methods can enhance our understanding of the actual impact of constitutional rights globally. By offering quantifiable insights into the effect of constitutional rights provisions on rights violations, it challenges the long-held skepticism towards empirical legal studies.
How Constitutional Rights Matter is part of a broad empirical turn in comparative constitutional law addressing the diffusion of constitutional practices, institutions and rights. Some of the accumulated work has come in the form of articles in law and social science journals. Some has come in the form of monographs. The Endurance of National Constitutions by Zachary Elkins, Tom Ginsburg and James Melton, drawing on the most comprehensive comparative law database ever built, has a been a major milestone, ushering in a decade of increasingly ambitious empirical work. Impressive as it was at the time, covering constitutional events worldwide over two centuries, The Endurance of Constitutions also suffered from methodological weaknesses, although these appeared only in retrospect as the credibility revolution spread to empirical comparative law. With its comprehensive mixed-method treatment, How Constitutional Rights Matter certainly sets the methodological bar higher and will define the standard against which empirical constitutional law will be assessed in the years to come.
Human rights revolutions are fought in poetry. But understanding what bills of rights are able to achieve requires a sober mind and lucid prose. Currently, How Constitutional Rights Matter is the most accomplished monograph on the reality of constitutional rights.