Legal Pragmatism and Comparative Constitutional Law
Comparative Constitutional Theory (Gary Jacobsohn and Miguel Schor, eds., 2017 Forthcoming
18 Pages Posted: 30 Jan 2017 Last revised: 8 Aug 2017
Date Written: 2017
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: Suggested Citation