Rethinking the role empirical. Social science in american constitutional adjudication

• Autores: Shu-Perng Hwang
• Localización: Archiv für Rechts-und Sozialphilosophie, ARSP, ISSN 0001-2343, Vol. 96, Nº 3, 2010, págs. 368-396
• Idioma: inglés
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• Resumen

  • This essay aims to provide a critical analysis on the role of empirical social science in constitutional adjudication. While empirical social science appears to fulfill the general requisites for objectivity and neutrality in law, it is incapable of purely rationalizing the Supreme Court's constitutional decision-making process, since the rationality of constitutional adjudication presupposes neither objectivity nor neutrality per se, but rather the Court's subjective discretion. This essay purports to show that, within the spirit of American common law, the Supreme Court's discretion is an indispensable adjunct to judicial rationality, not only because it embodies the central function of lawmaking and enables constitutional innovation, but also because it affirms and ensures the argumentative nature of constitutional reasoning, preserving the opportunity to argue constitutional propositions from all relevant viewpoints or interests advanced in a concrete case. By contrast, in pursuing objectivity and neutrality, empirical social science tends to obscure or conceal the Court's discretionary nature, and thereby undermines the rational basis of constitutional reasoning. In defense of the subjective character of judicial reasoning, I argue that the Supreme Court's discretionary process must be disclosed, in order to permit verification of its rational decision-making.