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On the Interpretability of Law: Lessons from the Decoding of National Constitutions

Published online by Cambridge University Press:  09 October 2012

James Melton ,
Zachary Elkins ,
Tom Ginsburg  and
Kalev Leetaru
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Abstract

An implicit element of many theories of constitutional enforcement is the degree to which those subject to constitutional law can agree on what its provisions mean (call this constitutional interpretability). Unfortunately, there is little evidence on baseline levels of constitutional interpretability or the variance therein. This article seeks to fill this gap in the literature, by assessing the effect of contextual, textual and interpreter characteristics on the interpretability of constitutional documents. Constitutions are found to vary in their degree of interpretability. Surprisingly, however, the most important determinants of variance are not contextual (for example, era, language or culture), but textual. This result emphasizes the important role that constitutional drafters play in the implementation of their product.

Type
Articles
Information
British Journal of Political Science , Volume 43 , Issue 2 , April 2013 , pp. 399 - 423
Copyright
Copyright © Cambridge University Press 2012

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Footnotes

*

Department of Political Science, University College London (email: j.melton@ucl.ac.uk); Department of Government, University of Texas at Austin; Law School, University of Chicago; and Institute for Computing in the Humanities, Arts, and Social Science, University of Illinois at Urbana-Champaign, respectively. The authors wish to thank Manuel Balán, Sara Birch, Abby Blass, Rui de Figueiredo, Brian Gaines, Ran Hirschl, Jeffrey Isaacs, Simon Jackman, Roger Noll, John Sides and two anonymous reviewers for helpful comments. They have appreciated financial support from the National Science Foundation (SES 0648288) and the Cline Center for Democracy. James Melton thanks the IMT Institute for Advanced Studies, Lucca, for additional financial support. Replication data are available on the Comparative Constitutions Project website: https://www.comparativeconstitutionsproject.org.

References

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7 One might argue that it is the interpretability of the constitutional order that really matters, not the interpretability of the constitutional text. By this logic, our whole enterprise would seem trivial. We disagree. Not only is it impractical to assess each countries’ constitutional order over time, but more importantly, the constitutional text is the foundation of the larger constitutional order. As a result, one can learn much about the constitutional order from a systematic study of constitutional texts. At the very least, whether the interpretability of the constitutional text or the constitutional order should be given priority is an empirical question that requires a firm understanding about the causes of both.

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39 Data on legal tradition are from the University of Ottawa, ‘JuriGlobe: World Legal Systems Research Group’, available at: http://www.juriglobe.ca/index.php (2010).

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