Suteu, S; (2022) The View from Nowhere in Constitutional Theory: A Methodological Inquiry. In: Kyritsis, D and Lakin, S, (eds.) The Methodology of Constitutional Theory. (pp. 341-358). Bloomsbury Publishing: London, UK.

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Abstract

This chapter begins from the premise that constitutional theory is still on a quest of self-definition as a field of inquiry and consequently is ripe for methodological reassessment. The chapter explores the methodological assumptions – mostly unstated but widely shared – underpinning much constitutional theoretical work by focusing on the role of comparison in constitutional theorising. Insofar as it finds itself at the intersection of, or in close conversation with, other disciplines such as political and legal theory, constitutional theory has developed hybrid (or, less generously, hodgepodge) methodological tools. It often finds it difficult to occupy the space between ideal and non-ideal theory. It may employ tools such as analogy and extrapolation, but frequently decontextualises or generalises from cherry picked or ‘usual suspect’ case studies. This chapter seeks to mine the rich methodological advances in cognate fields such as comparative constitutional law and comparative politics for insights on how constitutional theory can embrace contextualism and robust comparison. Our aim should be to avoid a ‘view from nowhere’ approach in constitutional theory that mistakes for objectivity what are ultimately contextual impoverishment and comparative blindness. The inspiration for the chapter’s title, of course, comes from Thomas Nagel’s eponymous work.[1] His insight that we are constantly grappling with the reality of interconnected subjectivities and objectivity in the world and that these sometimes will be irreconcilable has farther-reaching consequences for scholarly inquiry than will be explored here. For my purposes, most relevant will be Nagel’s insight that recognising our own subjectivity is directly connected to recognising our possibility of detaching from it. In other words, recognising that we as scholars are 342always contextually situated and individually subjective does not preclude us from engaging in robust scholarship – quite on the contrary, it is a prerequisite for it, especially when drawing inferences we assume have wide application. I would not overemphasise the inspiration drawn from Nagel’s work, however. I use it, instead, as a reminder to resist lawyerly ‘amateurish … pseudo-philosophical efforts’ as Mark Tushnet once put it.[2] In other words, as a call for self-reflection and self-awareness when doing constitutional theory, aided by a comparative outlook. The chapter proceeds by, first, discussing the comparative turn in constitutional theory and its potential for correcting old assumptions and revealing new insights. I illustrate these benefits by revisiting two well-trodden debates in constitutional theory and comparative constitutional law, one around the legitimacy of constitutional review and the other around citations of comparative material in constitutional adjudication. The chapter then turns to investigating recent advances in comparative constitutional change literature, in particular new work on constituent power and on unconstitutional constitutional amendments. These are used as examples of the type of interdisciplinary, comparative, and also deeply contextual scholarship that has the capacity to shed new light on old core questions of constitutional theory. I ultimately argue that this is demanding work, but that much more rewarding for it.

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