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

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.

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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.

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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

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Adam Przeworski , Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge: Cambridge University Press, 1991)

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Jed Rubenfeld , Freedom and Time: A Theory of Constitutional Self-Government (New Haven, Conn.: Yale University Press, 2001)

Howard E. A. Tinsley and David J. Weiss , ‘Interrater Reliability and Agreement’, in Howard E. A. Tinsley and Steven D. Brown, eds, Handbook of Applied Multivariate Statistics and Mathematical Modeling (San Diego, Calif.: Academic Press, 2000), pp. 95124

Matthew Lombard Jennifer Snyder-Duch and Cheryl Campanella Bracken , ‘Content Analysis in Mass Communication: Assessment and Reporting of Intercoder Reliability’, Human Communication Research, 28 (2002), 587604

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Zachary Elkins Tom Ginsburg and James Melton , The Endurance of National Constitutions (New York: Cambridge University Press, 2009)

Antonin Scalia , ‘The Rule of Law as a Law of Rules’, University of Chicago Law Review, 56 (1989), 1175–88

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British Journal of Political Science
  • ISSN: 0007-1234
  • EISSN: 1469-2112
  • URL: /core/journals/british-journal-of-political-science
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