—Richard Albert, Boston College Law School
In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.
This edition of “Five Questions” features Kim Lane Scheppele, the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University. Her full bio follows below:
Professor Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton. From 2005-2015, she was Director of the Program in Law and Public Affairs at Princeton, after 10 years on the faculty of the University of Pennsylvania Law School. Scheppele’s work focuses on the intersection of constitutional and international law, particularly in constitutional systems under stress. After 1989, Scheppele studied the emergence of constitutional law in Hungary and Russia, living in both places for extended periods. After 9/11, she researched the effects of the international “war on terror” on constitutional protections around the world. Since 2010, she has been documenting the rise of autocratic legalism in first Hungary and then Poland within the European Union. Her many publications in law reviews, in social science journals and in many languages cover these topics and others. She is a commentator in the popular press, discussing comparative constitutional law, the state of Europe, and the rise of populism. Scheppele is an elected member of the American Academy of Arts and Sciences and the International Academy of Comparative Law. In 2014, she received the Law and Society Association’s Kalven Prize for influential scholarship. She held tenure in the political science department at the University of Michigan, was the founding director of the gender program at Central European University Budapest and has taught in the law schools at Michigan, Yale, Harvard, Erasmus/Rotterdam, and Humboldt/Berlin. From 2017-2019, she will serve as the elected President of the Law and Society Association.
I’m working on two interconnected book projects. One, called Counter-Constitutions, is rather improbably about phenomenology and Hungary. The book argues that constitutions are imperiled when their key principles fail to be taken for granted and it shows how justificatory failures open the way for constitutional collapse. Phenomenology is relevant to this inquiry because it has the most sophisticated account of how a “social stock of knowledge” is collectively produced so that it comes to feel real, and how precarious that reality becomes when it loses its social support. Hungary is the perfect case study to illustrate how a phenomenological theory of constitutionalism works, because it has had two major constitutional revolutions in 25 years. The book is written so you can read the theory without the cases or the cases without the theory in case readers aren’t interested in both.
The other book project, Autocratic Legalism, examines the rise of a new breed of autocrat who comes to power in a liberal constitutional democracy by winning an election fair and square and then who deconstructs the constitutional system that allowed his rise to power. The book focuses on backsliding constitutional democracies and shows how the new autocrats deploy phalanxes of lawyers rather than phalanxes of soldiers to disarm constitutionalism. I trace particular tools and their uses across autocratic regimes of very different ideological stripes.
And then I’m trying to fix problems in the EU by proposing ways for the European Commission to deal with backsliding states through systemic infringement actions and by suggesting some unconventional solutions to Brexit.
2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?
I’ve always thought I should have a routine, but I don’t. I write in binges when there are deadlines, as do most of us, I suppose. But I also stop and start, stop and start, make no progress at all for a while, and then write a huge flurry of words all at once. When I know what I want to say, I write fast. When I am still figuring things out, it’s hard to know where to start. So I percolate ideas for quite a while during which it’s hard to get much writing done, and then I typically binge-write my way to the finish line.
3. Whose scholarship jumps to the top of your reading list when she or he publishes something new?
Perhaps it is a sacrilege to say so, but I am an obsessive consumer of news even more than an obsessive consumer of scholarship. I read at least a dozen news sites in multiple languages each day trying to get a sense for current events. I also read smart journalism, academic listservs, primary sources (new cases, white papers, expert reports, legal analyses), that deal with real-time events. I’m also an obsessive reader of blogs – law blogs, news blogs, academic blogs. I rarely start with “the scholarly literature” and look for gaps to be filled because, by the time that a literature develops, the events in the world that triggered that literature have long since ceased to be current. I love the thrill of engagement with ongoing events, probably not surprising given that I started my career as a journalist. As a result, I tend to write and teach about things that no one is working on (yet). By the time that “the literature” catches up to what I’m doing, I’m usually onto something else. I read those literatures appreciatively, of course, because they often approach these questions more systematically and with benefit of a longer time for reflection. But I like working in relatively empty fields before others figure out how interesting they are.
That said, I do have a long list of authors whose work I read as soon as I see it, but I stop reading authors who write too much or who start to repeat themselves. I am always scanning the academic horizon for new authors with a perspective I haven’t encountered before. And I read a lot of history, as well as academic scholarship from other decades and centuries.
4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?
My PhD is in sociology and I was very influenced by my teachers and their writings: Robert Merton, Herbert Gans and Guillermina Jasso (my undergraduate advisors) and Arthur Stinchcombe, Edward Shils and James Coleman (my dissertation committee). I learned to argue about law with Richard Posner (who also served on my dissertation committee) but my theoretical approach to law was most shaped by Brian Simpson, whose course in jurisprudence combined philosophy with history and anthropology and whose writings continue to be an inspiration. As for particular texts that I first encountered while a student and that continue to be touchstones for my scholarship apart from those of my direct teachers, I would list Karl Llewellyn’s Bramble Bush and Clifford Geertz’s essay “Local Knowledge.” Oh yes, and Ludwig Wittgenstein’s Philosophical Investigations and Alfred Schütz’s Phenomenology of the Social World. Somehow many of my key inspirational texts were written in the 1930s, a period that also informs my current scholarship on constitutional collapse.
5. What are some of the big questions ripe for inquiry in your area of research interest?
We still don’t understand well enough how law becomes real. By that, I mean that we don’t understand how law goes from words on paper to practices in the world. Similarly, we don’t understand how practices in the world reinforce or undermine structures of legality. There is a disciplinary dividing line between lawyers’ law (doctrine) and social scientists’ understandings of society which tends to focus on action and almost never include study of the legal concepts and categories through which people learn to perceive the world. I think we need to blur that line and study questions like: How do constitutions emerge and collapse? How do legal ideas emerge from non-expert concepts? How does law “constitute” institutions, offices, norms and the people who inhabit them? How is “the political” differentiated from “the legal” in particular times and places? If we see law as a field of knowledge and social action as based on the concepts and categories through which people understand the world, law and social sciences can inspire each other more.