Legal Pragmatism and Comparative Constitutional Law

Comparative Constitutional Theory (Gary Jacobsohn and Miguel Schor, eds., 2017 Forthcoming

FSU College of Law, Public Law Research Paper No. 847

18 Pages Posted: 30 Jan 2017 Last revised: 8 Aug 2017

See all articles by David Landau

David Landau

Florida State University - College of Law

Date Written: 2017

Abstract

This chapter, for inclusion in the Elgar Handbook on Comparative Constitutional Theory (edited by Gary Jacobsohn and Miguel Schor) considers the place of legal pragmatism in comparative constitutional law. The article first defines legal pragmatism as a theory that is anti-formal, eclectic, contextual, and instrumental, and articulates and responds to some common critiques of these central tenets. It then explains that while legal pragmatism is sometimes viewed by its adherents (such as Richard Posner) as being mostly of relevance in United States constitutional theory, it actually has much to say to the field of comparative constitutional law. The chapter argues that the insights of pragmatism can usefully be viewed in synthesis with important tools of comparative constitutionalism, such as proportionality, in order to suggest ways in which those tools can be broadened and improved. It also can help to point out the importance of “blind spots” that are deemphasized in existing theories, like questions of remedy and case selection.

Keywords: legal pragmatism, comparative constitutional law, proportionality, Richard Posner

JEL Classification: K33

Suggested Citation

Landau, David, Legal Pragmatism and Comparative Constitutional Law (2017). Comparative Constitutional Theory (Gary Jacobsohn and Miguel Schor, eds., 2017 Forthcoming; FSU College of Law, Public Law Research Paper No. 847. Available at SSRN: https://ssrn.com/abstract=2907093

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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