Seminário. WHYTOCK. Taking Causality Seriously in Comparative Constitutional Law

TAKING CAUSALITY SERIOUSLY IN COMPARATIVE CONSTITUTIONAL LAW:
INSIGHTS FROM COMPARATIVE POLITICS AND COMPARATIVE POLITICAL ECONOMY.
Christopher A. Whytock

Alunos: Renato Souza Oliveira Junior e Felipe Dantas de Araújo

1. Perguntas iniciais
· What accounts for cross-national differences in constitutions?
· Under what circumstances is constitutional “borrowing” likely to occur, either in the form of references by domestic constitutional court judges to foreign legal principles in constitutional interpretation, or adoption by one country’s constitutional reformers of another country’s constitutional arrangements?
· Why are some constitutions lasting, while others fail?
· Sometimes these questions are about the economic, political, or social consequences of constitutions. Constitutions may be intended to create checks and balances between different branches of government, to guarantee citizens certain rights, or to foster economic development—but do they have the intended effects?
· What unintended consequences might result when a constitution interacts with a country’s other institutional features, and with its culture?
· What, in other words, are the real-world implications of different constitutional arrangements?

CONSTATAÇÃO 1: Yet comparative constitutional law scholarship so far has shed little light on the answers to these questions and the validity of these claims.

CONSTATAÇÃO 2: Robert Cooter argues that with constitutional scholarship’s focus “on the constitution as an historical agreement and a repository of values,” it does not pay sufficient attention to “the constitution as an incentive structure that affects behavior.”


PROPOSTA 2: Legal scholars have much to gain from taking causality seriously in comparative constitutional law, and I suggest that scholarship on comparative politics and comparative political economy provides useful insights about how this might be done.


1. Brief overview of recent comparative constitutional law scholarship to highlight the pervasive issues of causality that it raises.

1.1 ORIGINS OF CROSS-NATIONAL CONSTITUTIONAL VARIATION:
In political science, the “behavioral revolution” temporarily marginalized the study of law and institutions altogether. But real-world events reinvigorated comparative constitutional law scholarship in both disciplines: confluence of the great wave of constitutional reform that flowed around the world—from Central and Eastern Europe to South Africa and Latin America—in the 1980s and 1990s, with the development of a strong community associated with international rights.

1.2 Three closely related approaches dominate contemporary legal scholarship on comparative constitutions:

The first approach describes the various ways that different countries’ constitutions address similar problems, and then analyzes these differences with the goal of “self-reflection through analogy, distinction, and contrast,” or in order to refine constitutional concepts.
constitutional review, the separation of powers, federalism, and individual rights
application of comparative private law’s traditionally dominant methodology, functionalism, to comparative public law. (Konrad Zweigert and Hein Kötz’s classic statement of the functionalist method: “the legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results.” Thus, the functionalist method begins by identifying common problems and only then turns to the analysis of different legal arrangements.)

1.3 A second approach to comparative constitutional law scholarship focuses on “constitutional design.”As summarized by Hirschl, this approach uses comparative constitutional law “as a guide to constructing new constitutional provisions and institutions, primarily in the context of ‘constitutional engineering’ in the postauthoritarian world or in ethnically-divided polities.”
Beyond describing and analyzing differences between constitutions, an important goal of the constitutional design literature is to prescribe constitutional solutions that are appropriate for political and social problems,
critically evaluate constitutional reforms.
“applied branch” is characterized more by a spirit of policy advocacy than self-reflection.

1.4 Closely related to constitutional design, a third approach to comparative constitutional law examines “constitutional borrowing.”
Rather than prescribing particular constitutional solutions, this approach is aimed at gaining a better understanding of the circumstances under which it is appropriate for one country to adopt another country’s constitutional arrangements or interpretations.
A normative version of this approach has taken form in response to what some scholars perceive as an increasing willingness of constitutional courts to cite foreign legal opinions on constitutional matters,
several recent controversial instances of foreign law citation by the U.S. Supreme Court.
debate on whether references to foreign legal decisions by courts engaged in domestic constitutional interpretation can be justified as a matter of constitutional theory
debate on appropriate methods to apply when using foreign law.

Central claim is this: causal questions permeate the field of comparative constitutional law.


2. EXAMPLES OF THE WORK THAT POLITICAL SCIENTISTS AND ECONOMISTS HAVE DONE ON COMPARATIVE CONSTITUTIONAL LAW.

They ask questions about the origins and consequences of constitutions that are similar to those raised by comparative constitutional law scholars.
But they frame these questions in explicitly causal terms, developing positive theories about cause-and-effect relationships from which hypotheses can be derived, and testing them empirically using social science methods of causal inference.
Moreover, scholars of comparative politics and comparative political economy have provided strong empirical evidence that constitutions indeed have consequences for important outcomes, ranging from political stability and ethnic conflict, to fiscal deficits and public spending.

2.1Comparative Politics: The Political Origins and Consequences of Constitutions: Comparative politics scholars have been particularly interested in three basic constitutional features: electoral systems, federalism, and separation of powers.

A major debate in personal comparative politics is about whether presidential constitutional designs reduce democratic stability.
Juan Linz finds that presidential systems are indeed less stable than parliamentary systems, in part because they make deadlock likely between the president and the legislature.
José Cheibub and Fernando Limongi agree with the basic empirical finding that presidential regimes are less stable than parliamentary regimes, but disagree with Linz and others about the underlying causal mechanisms: “if parliamentary regimes have a better record of survival than presidential regimes, it is not because they are parliamentary.”

As this brief summary of the debate over presidentialism and democratic stability shows, identifying empirical patterns is only one part of empirically oriented comparative constitutional law scholarship. It is also only one step toward reducing uncertainty about causal inferences—ASSOCIATION IS NOT CAUSATION. Causal inference also depends on positive theoretical work aimed at identifying causal processes, and empirical examination of the observable implications of those processes.

2.2 Comparative Political Economy: The Economic Consequences of Constitutions
Comparative political economy is the branch of political economy that explores the relationship between cross-national institutional differences and cross-national economic differences.
Given the increasingly widespread use of the tools of law and economics by comparative law scholars, there are important links with comparative political economy in particular.
Generally, however, the work of political economists has placed a greater emphasis on the development and empirical testing of positive theories about actual relationships between legal and economic variables.
Llike most law-related comparative political economy scholarship, law and economics has devoted less attention to constitutional law than to “private law” subjects such as contract and tort law.

Regarding federalism, Jonathan Rodden and Erik Wibbels analyze cross-sectional time series data from 15 federal systems, and find that increased decentralization of expenditures—defined as the percentage of total public sector spending conducted by subnational governments rather than the central government—reduces overall fiscal deficits and inflation.95 Using cross-sectional time series data from 44 countries, Rodden also finds that when fiscal decentralization is funded by direct transfers from the central government to subnational governments, the result is faster growth in overall government spending, whereas it is associated with slower growth in government spending when it is funded by autonomous local taxation.

Using cross-sectional data from 80 countries, Persson and Tabellini find that presidential systems— which they operationalize as the absence of a confidence requirement—lead to lower overall government spending, and apparently lower welfare spending, relative to parliamentary forms of government.

John Gerring, Strom Thacker, and Carola Moreno’s research on centripetal democratic governance. They examine the collective impact of electoral systems, federalism, and separation of powers. Conceptually, the authors distinguish centripetal government, which is unitary, parliamentary, and has a PR electoral system, and decentralized government, which is federal, presidential, and has a majoritarian electoral system. Using cross-sectional times series data from 77 to 126 countries (depending on the statistical model), they find that centripetalism is associated with higher bureaucratic quality, higher tax revenues, better investment ratings, more trade openness, greater economic prosperity, fewer infant deaths, longer life expectancy, and lower rates of illiteracy.

3. SOCIAL SCIENCE METHODS OF CAUSAL INFERENCE MIGHT BE USED TO ADDRESS CAUSAL CLAIMS AND CAUSAL QUESTIONS IN COMPARATIVE CONSTITUTIONAL LAW

A. Theory and Hypotheses: Persson and Tabellini predict that total central government spending should be higher in parliamentary regimes than presidential regimes.

They base their prediction on a basic constitutional feature of parliamentary systems that governs executive-legislative relations: the dependence of the executive on legislative confidence.

In the typical presidential system, the constitutional rules governing executive-legislative relations are different: the president is popularly elected for a fixed term and generally cannot be removed by the legislature, except under extraordinary circumstances such as impeachment.

The theoretical logic connecting a confidence requirement with higher government spending has two basic steps. First, a confidence requirement gives the governing coalition in parliament an incentive to act cohesively to retain its agenda-setting powers. No legislative majority is needed to keep an independently elected executive in office, giving members of the president’s party no additional incentive to act cohesively.
Second, the stable majority of incumbent legislators that results from a confidence requirement, and “the majority of voters backing them, become ‘residual claimants’ on additional revenue; they can keep the benefits of spending within the majority, putting part of the costs on the excluded minority.” The residual claimants, therefore, favor higher spending. Absent a confidence requirement, there are no such residual claimants on revenue, and the majority of voters and legislators will oppose high spending. Thus, legislative cohesion increases government spending.

H1 (Legislative Cohesion Theory): Government spending is higher in countries with constitutions that make the executive’s survival in power dependent on legislative confidence than in countries with constitutions that do not impose a confidence requirement on the executive.

Therefore, I propose a modification to Persson and Tabellini’s legislative cohesion theory. Because open-list electoral systems undermine legislative cohesion, breaking the chain of causation between a confidence requirement and higher government spending, a confidence requirement should only lead to higher government spending in closed-list electoral systems. In other words, I argue that there is an interaction effect between two institutional features: the presence or absence of a confidence requirement in the constitution and whether the electoral system is open-list or closed-list. The relationship between a confidence requirement and government spending depends on the nature of the electoral system and implies the following conditional hypothesis:

H2 (Modified Legislative Cohesion Theory): Government spending is higher in countries with constitutions that make the executive’s survival in power dependent on legislative confidence than in countries with constitutions that do not impose a confidence requirement on the executive, but only if there is a closed-list electoral system.

4. AGENDA FOR EMPIRICAL COMPARATIVE CONSTITUTIONAL LAW

4.1 Theoretically, the focus would be on research questions that are framed in explicitly causal terms, and on the development of positive theories from which hypothetical answers could be derived.
the questions can take at least two basic forms: one treating constitutions as dependent variables to be explained, and the other treating constitutions as explanatory variables that can help explain other phenomena

4.2 Methodologically, the goal would be to select appropriate techniques for empirically evaluating these hypotheses while maintaining awareness about the methodological tradeoffs that these choices entail.
I have illustrated how one type of statistical or “large-N” analysis can be applied to test hypotheses in comparative constitutional law, and Hirschl has demonstrated the importance of qualitative “small-N” research techniques for comparative constitutional law scholarship.
So far, there has been relatively little legal scholarship that brings together comparative law and empirical legal studies, but doing so is one way that legal scholars might explore methods for taking causality seriously in comparative constitutional law.

4.3 Pedagogically, the challenge is to figure out how, and how much, to incorporate considerations about the origins and consequences of constitutional arrangements into comparative law and constitutional law teaching.
By providing evidence about the realworld consequences of constitutions, empirical comparative constitutional law scholarship can help students think more concretely about these questions.
Empirical comparative constitutional law in its pedagogical form would invite students to think critically not only about the constitutional text, its history, and its judicial interpretations, but also about its role in broader social, political, and economic processes.