Challenges and finalities

Modelling constitutional rights

For an applied legal epistemology

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Topicality of the debate on models in comparative constitutional law

Critique of models

The approach in terms of models is a standard process in constitutional law. For example, since the beginning of the 20th century, we have contrasted American and European (or Kelsenian) models of constitutional justice. In a more general way, the logic behind classification seems to affect a large number of objects of constitutional law and theory of State, such as electoral systems (the first-past-the-post electoral system/proportional representation), the spatial distribution of State power or the structures of the State (unified State/federal State), the institutional distribution of State power or the political systems (strict separation of powers, presidential system/flexible separation of powers, parliamentary system)…

At the heart of French contemporary constitutionalist doctrine, the tendency seems to be a challenging of these binary approaches, often considered - and rightfully so – to be overly simplistic. Thus, Olivier Jouanjan analyses the “models and representations of constitutional justice in France” and puts forward a “critical evaluation”. In his “methodological critique”, Guillaume Tusseau develops a reasoning Against the “models” of constitutional justice. Marie-Claire Ponthoreau seeks for her part to exceed the “objective of conceiving and elaborating models and classifications”, when she proposes to redesign comparative constitutional law, in her book on Droit(s) constitutionnel(s) comparé(s).

Rehabilitating modelling

In this context, one of the aims of the research project is to reflect on the possibility and relevance of rehabilitating modelling in comparative constitutional law. But one should not be satisfied here with questioning the traditional approaches solely from an internal legal perspective.

The challenge is, on the one hand, to understand how and with which tools disciplines other than law make use of modelling and, on the other hand, to question whether and to what extent scientific discourse on law is unable to find a means of reconsidering its own models, by borrowing new methods of modelling. Without giving up a critical perspective, quite to the contrary, the will to rehabilitate modelling in comparative constitutional law implies the implementation of a process of applied legal epistemology.

Developing an applied legal epistemology

The need for adopting a perspective of applied legal epistemology is justified by considerations related to the object of research. Because the project to model constitutional laws raises a vast range of questions, which implies not only reflection on the possibility of legal knowledge in itself, but also a study of the operational means for knowing and comparing laws. At this stage, it would of course be irrelevant to gain definitive answers to questions which are themselves under development. It is however necessary to specify the overall process of the project.

The aim is to create a legal information system for comparative constitutional law, likely to be used for the analysis of quantitative and qualitative data gathered in such a way. But this practical approach implies theoretical reflection on the conditions for the possibility of a legal science conceived as a science of legal information.

Conditions for the possibility of a legal science

as a science of legal information

Epistemological reflection which is preliminary and parallel to operational work must necessarily be open to disciplines other than law, in particular the sciences of information and communications. The informational approach of law which is the subject of development will however not forsake the legal specificities of the law conceived as information.

Thus, the concept of “legal informations” within the meaning of this research project does not necessarily coincide with the concept of “legal information” of the sciences of information, documentation or communications. The distinction is notably - but not exclusively - a question of scale: if, from the perspective of documentary research or librarianship for example, the “different units of information” are rather the “codes, articles, [or] decrees…”, the units of legal information that would be the subject of identification in our research will require an analysis on a more detailed scale of the legal rule itself. After having been defined from a theoretical standpoint, these units of legal information could then be collected, processed and restored using the IT tool.

We suggest naming these units of legal information juremes (“jurèmes” in French); jurematics - in other words the study of the juremes - could thus indicate a scientific approach to law conceived as a collection of legal informations. This is of course, only a suggestion – an insight - and one of the aspects of the envisaged research will be to assess its relevance and operational nature.

Development of a method of capture, processing

and restoring of legal information

The applied scale of the research project results in the development of a method of capture, processing and restoring of legal information in comparative constitutional law. In practical terms, it is a question of creating a legal information system relating to the object of study, thanks to software for the creation and management of relational databases. This data will then be processed, namely using statistical tools for data analysis, such as analysis of correspondence.

In France, the creation and management of databases are an emerging practice in certain disciplines of social sciences such as geography or history. Furthermore, the opening to disciplines other than law is thus necessary to understanding the possibilities offered by this type of tool and, especially, to learn how to operate them.

First application of the method to constitutional justice

in the States of the European Union

The development of the legal information system in comparative constitutional law must take into account three sets of concerns: development of the form for the capture of legal and contextual information; the need for processing of raw data; and the various possibilities for restoring legal information, in particular computer graphics, drawing on the numerous modern forms of media.

If, ultimately, the method is intended to be applied to other legal objects and to other States, the field of application retained on an experimental basis is constitutional justice in the States of the European Union. At this stage, the challenge is to adapt the method to data relating to constitutional justice, by crossing the institutional approach - centred on the procedures for the monitoring of constitutionality - and the substantive approach - focused on constitutionally recognized rights and freedoms.