The Dogmatic Slumbers of Constitutional Doctrine

39 Pages Posted: 16 Feb 2018

Date Written: February 14, 2017

Abstract

My forthcoming (2019) dissertation raises the question whether European constitutional scholarship has adequately dealt with some of the challenges American Legal Realists have launched.

There, I undertake to reconstruct some of the claims of American legal realism so as to be able to critically subject European constitutional scholarship to these claims. Conversely, I (re)construct some theoretical and methodological answers that have been proffered so as to fend off the aforementioned challenges. The defense resting on the justificatory focus of legal scholarship (as opposed to a focus on discovery) has been one of the common responses, as I try to explain below, to dislodge realist criticism.

Relativizing the context distinction in the context of legal scholarship, as I will try to do here, does not by itself provide a conclusive argument for a reconceptualization of doctrinal scholarship. However, in my dissertation I offer additional arguments to establish the need for this reconceptualization, focusing on the relativity of the autonomy of the law as an object of inquiry for legal scholarship, and discussing the concept of “reification” as I see it emerging out of legal realist thought. This is a work in progress, which I am happy to discuss further.

Keywords: jurisprudence; legal realism; context of discovery; methodology

JEL Classification: K00

Suggested Citation

Feyen, Stef B.A.S., The Dogmatic Slumbers of Constitutional Doctrine (February 14, 2017). Available at SSRN: https://ssrn.com/abstract=3123064 or http://dx.doi.org/10.2139/ssrn.3123064

Stef B.A.S. Feyen (Contact Author)

Flemish Research Foundation (FWO) ( email )

Tiensestraat 41
Leuven, B-3000
Belgium
016325120 (Phone)

HOME PAGE: http://law.kuleuven.be

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