Historically, the link between academic law and political science has hardly appeared to be a matter of concern. For first generation political scientists, understanding the polity was first and foremost an exercise in understanding the written constitution. In the German tradition, Allgemeine Staatslehre blended constitutional philosophy and constitutional history. It was virtually a matter of coincidence whether a writer in this field held a chair in constitutional law or in political science. These days, however, many political scientists define themselves differently. They see their field as a social science that combines rigorous theoretical models with empirical testing that is no less rigorous. This disciplinary shift makes interdisciplinary work between political scientists and lawyers a much more demanding exercise. Defining and exploring the conditions for the possibility of such work must itself become a theoretically guided endeavour. The present volume aims precisely to provide such guidelines. This introduction addresses the methodological challenge from the perspective of one of the fields, the law.
The methodological challenge is not symmetrical. A lawyer who relies on the work of political scientists does not face the same problems as a political scientist who relies on work of his colleagues in the field of law. This is why the volume starts not with a uniform methodological piece but with two separate ones (Heller 2003; Risse 2003). Likewise, the volume assembles substantive contributions from both fields. And this introduction will use them as evidence for how the political science/law divide can be productively bridged in practice. Given the disciplinary background of the author, he primarily approaches things here from a legal perspective (see sections 2-6 below). But this part of the introduction concludes with some remarks from the opposite perspective, i.e. the perspective of political science (section 7).
The legal perspective comes in four parts. The first two parts do not look at legal scholarship, but at legal practice. This does not exclude work by legal scholars. But these first two sections assume that the lawyer does doctrinal work. Typical doctrinal products of academics comprise case notes, treatises and commentaries, provision by provision. But a lot of scholarly monographs also fall into that category, as long as their intention is to explain how the law in force ought to be construed. The methodological exercise of examining this literature is split up. Section 2 treats political science as an example of a social science. The problems addressed here are thus, in principle, similar to the problems faced in fields such as law and sociology or law and economics. Section 2 is narrower. It looks at the political science/law divide in particular. Section 4 no longer looks at doctrinal work. But it still treats the academic lawyer as an actor within the legal system, not as an outside observer of that system. Put differently, this section looks at lawyers engaged in legal policy-making. This is different in section 5. It
addresses the interaction between political science and what one might call legal studies. It thus no longer has the lawyer as an actor, but as an observer. From an external
vantage point, he analyses how the law works. Section 6 is pragmatic. It summarises how the papers assembled in this volume actually meet the interdisciplinary challenge.[1]
In the present volume, the distinction between an internal and an external view of law (Hart 1961: 48-78) plays an important role (Heller 2003; Risse 2003). The internal view is defined as the one taken by those who âœrecognize the law as expressing authoritative claims to guide and bind their conductâ (Heller 2003: 26). The external view, however, is attributed to lawyers who âœopen or locate the authoritative principles or texts of a legal system in a wider context that explains in terms of non-legal causes the origins or functions of these commitmentsâ (Heller 2003: 29). The external view is also found among lawyers who hold a âœreflexive position vis-Ã -vis their own internal perspectiveâ (Risse 2003: 85). These quotes show that the internal/external distinction can be interpreted in a multi-faceted way. For reasons of transparency, however, the following uses the simple distinction between the actor and the observer.
2. The Science/Law Divide
Both the methodological and the substantive contributions to this volume demonstrate that the prime challenge for a lawyer who relies on work from political scientists rests in the more general science/law divide. It basically consists of the divide between science and practice (see section a below). It is often combined with the distinction between normative and explanatory work (section b). It frequently is compounded by grossly different processes for generating facts (section c). Various softer distinctions are to be added to these harder ones. Disciplin
Political Science = 4 years of college, BS degree.
Law = 4 years of college + 3-4 years of law school; a lot more to learn.
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