Boston College - Law School
June 13, 2012
Forthcoming, Harvard Law Review Forum, Vol. 125 (June, 2012)
Boston College Law School Legal Studies Research Paper No. 270
This paper was delivered as a Provocation at a Symposium in Honor of Professor Frank Michelman, hosted at Harvard Law School in February 2012. Using Professor Michelman’s extraordinary body of work in comparative constitutional law, the essay explores the importance of the oft-neglected normative dimension of comparative analysis. Far from endorsing a binary choice between legal function and legal culture, Michelman’s work on the permissibility of the state’s use of remedial racial classifications in South Africa and the United States shows the deep connections between function, culture and political morality. This lesson seems particularly timely given the recent empirical and institutional turns in legal scholarship. The doctrinal emphasis on the functionalist marketplace of ideas is indefensible without supplementing it with an account of constitutional culture, which itself rings hollow unless supported by a conception of political morality. From this perspective, the project of comparative constitutional law appears intimately related to the project of domestic ordering through law. The relation between these projects is best understood as one of reflective equilibrium where changes in each can lead to recalibration in how the other project is formulated. Herein resides the challenge and promise of comparative constitutionalism.
Number of Pages in PDF File: 15
Date posted: June 13, 2012
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