Constitutional Scholars as Constitutional Actors

Federal Law Review, Forthcoming

16 Pages Posted: 16 Jul 2020

See all articles by Liora Lazarus

Liora Lazarus

Peter A. Allard School of Law, University of British Columbia

Date Written: March 15, 2020

Abstract

Few constitutional scholars would dispute that Carl Schmitt played a legitimating role in the downfall of the Weimar Republic, or that Albert Venn Dicey has defined the UK and other commonwealth constitutions. Why then is there no general conception of constitutional scholars as constitutional actors? It is now well established that ‘to understand how our Constitution and laws are practised, it is necessary to study and understand many more institutions in the system than simply the Judiciary’ While the focus has broadened to include a range of constitutional office holders and institutions, little has been said about the role and status of the constitutional law academy.

While formal constitutional recognition of constitutional scholars may be a step too far, the purpose of this paper is to explore the idea of constitutional scholars as analogous to integrity institutions. The analogy is made because of the facilitative role of the constitutional academy to ‘well-functioning constitutionalism’ and because of its constitutive role in shaping constitutions and constitutional doctrine. By conceiving of constitutional scholars as constitutional actors in this way, the paper allows us to examine the normative implications of this analogy. As a form of resistance to authoritarian populism, one implication of such an analogy could be to strengthen academic freedom and protect the integrity and independence of constitutional scholarship. Moreover, viewing constitutional scholars as constitutional actors sharpens our understanding of the ethical obligations of constitutional scholarship: of ‘academic self-awareness’ and of ‘decisional’ and ‘institutional’ independence. This duty of independence may be equally important to the public standing, expert status and integrity of the constitutional law discipline in a highly politicized populist moment.

Suggested Citation

Lazarus, Liora, Constitutional Scholars as Constitutional Actors (March 15, 2020). Federal Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3612305 or http://dx.doi.org/10.2139/ssrn.3612305

Liora Lazarus (Contact Author)

Peter A. Allard School of Law, University of British Columbia ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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