Ran Hirschl’s Comparative Matters
BU Law Review Book Symposium invites scholars to discuss University of Toronto Professor’s recent scholarship.
On Thursday, November 12, Boston University School of Law welcomed several distinguished comparative constitutional law scholars to participate in the annual BU Law Review Book Symposium.
Each year BU Law chooses a significant, recent book in law that enters into an important conversation on a timely topic. The author is invited to present his or her work, and scholars both within and without the BU Law community are invited to write and present essays on the book. The essays are then published in the Boston University Law Review.
This year’s symposium focused on Comparative Matters: The Renaissance of Comparative Constitutional Law by Ran Hirschl, professor of law and political science and holder of the Canada Research Chair in Constitutionalism, Democracy and Development at the University of Toronto. Comparative Matters is the third and final part of his exploration of the intersecting worlds of constitutional law and comparative politics that began with Towards Juristocracy (Harvard University Press, 2004) and continued with Constitutional Theocracy (Harvard University Press, 2010). To open the symposium, Professor Hirschl spoke about the beginning of the project and the goals he hoped to achieve in writing these books.
BU Professor of Law and scholar of comparative property law Anna di Robilant opened the first panel. She observed that the “artificial separation between comparative constitutional law and other related fields that study the same phenomenon will only limit the questions we ask and address.” Hirschl’s book, she argues, works to bring back the “big questions”—questions about social life that are substantively and normatively important—that inclusively engage scholars from separate disciplines in the study of social life. Di Robilant points to the proliferation of large-scale empirical research as evidence of the resurgence of these big questions, but also called for qualitative historical comparative analysis, which she suggests would allow for causal inferences about the phenomena of social life.
Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor of Political Science at the University of Chicago Tom Ginsburg then discussed the need to expand the temporal scope of comparative constitutional law. He related the focus on court cases in comparative constitutional law to a baseball fan who engages in “7th inning analysis:” one who pays attention to and draws conclusions from only one inning, late in the game. Ginsburg argues that, in adopting such a narrow window of comparison, we miss many of the important questions: “Where does constitutional order come from? How does the court have the power that it does? And what is the impact of the decision on real outcomes after the court decision?”
The questions we ask
In the second panel, Harvard Law School’s Thurgood Marshall Professor of Constitutional Law Vicki Jackson suggested that the limited conversation between legal scholars and scholars in other fields may be due in part to those fields’ lack of methodological comfort with the law. She wondered where Hirschl’s book and his efforts to move comparative constitutional law into closer engagement with the social sciences fit within the broader context legal scholarship. Is the goal, she questioned, to treat the study of law as a science? Is that beneficial to the field? Jackson noted the benefit of teaching the discourses of the law to students, the majority of whom will practice law in its social, political, and cultural interactions.
Associate Professor of Law Katharine Young, of Boston College Law School, took up the question of what it means for a law or a legal practice to be “constitutional.” There is often a distinction, she noted, between the “big C” constitution and “small c” constitution in legal thinking. The first is a formal, written text, while the second is found in a set of practices, traditions, and norms that are “just as essential for the success of the constitutional protect.” It can be extremely useful for comparative scholarship to study the latter. Young suggested the “small c” constitution in scholarship and practice calls for links between fields of study but also for attention to normative, prescriptive “what” questions—what is law? as well as to explanatory questions of “why” and “how.”
Space for conversation
The symposium provided an important space for these scholars to consider the “big questions” that concern their field. Events like the BU Law Review symposia offer students the unique opportunity to participate in that intellectual life in a format that invites discussion and the exchange of ideas.
Essays presented at the Comparative Matters symposium will soon be available in a future edition of the BU Law Review. Please check the website in the coming months to read more about the ideas exchanged during this exciting event.