Aversive Constitutionalism

Elgar Research Handbook on Constitutional Interpretation (Kate O'Regan, Sujit Choudhry, Carlos Bernal eds, 2023 forthcoming)

25 Pages Posted: 6 Sep 2022 Last revised: 14 Feb 2023

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

London School of Economics - Law School

Date Written: August 15, 2022

Abstract

In this paper, I clarify the phenomenon that Kim Lane Scheppele characterised as 'aversive constitutionalism'. Primarily using (and reconceptualising) the material from Justin Collings’s recent book—'Scales of Memory: Constitutional Justice and Historical Evil', I argue that aversion is substantively an attitude, and stylistically a framing device in judgments.

As an attitude, it informs the affective, cognitive, and behavioural dimensions of an aversive judgment. Each of these dimensions are uncovered through key proxies discerned from the (admittedly limited) evidence provided in the texts of judgments.

As a literary framing device, the aversive narrative bookends the substantive engagement with the issue at hand. This style shifts the burden of justification, at least in part, from the judge herself to the personified polity, speaking through the framing device, to remind us of the aversive other (often the polity's own past self) that must be avoided.

Both as an attitude, and as a framing device, aversive constitutionalism seeks to serve two key functions: a legitimation function (in relation to the judgment and of the court) and an identitarian function (by defining the political self in opposition to the other).

Keywords: Aversive Constitutionalism, Aspirational Constitutionalism, Memory

Suggested Citation

Khaitan, Tarunabh, Aversive Constitutionalism (August 15, 2022). Elgar Research Handbook on Constitutional Interpretation (Kate O'Regan, Sujit Choudhry, Carlos Bernal eds, 2023 forthcoming), Available at SSRN: https://ssrn.com/abstract=4190301 or http://dx.doi.org/10.2139/ssrn.4190301

Tarunabh Khaitan (Contact Author)

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
307
Abstract Views
1,138
Rank
193,630
PlumX Metrics