Beyond Constitutional Dogmatics

Abstract

This article investigates whether and to which extent current (Belgian) dogmatic constitutional scholarship still squares with the core aspiration of dogmatics, that is to obtain knowledge and representation of valid law. For constitutional scholarship faces a problem, which has been alluded to by American legal realists before, namely that scholarship does not succeed in thematizing the liberties of the judge as such. This unboundedness – judicial playing room, so to speak – nonetheless exerts an important and growing influence on “legal realization” by and through the judge. If we want to develop constitutional scholarship, which duly recognizes that legal knowledge depends on judicial decisions, then (dogmatic) constitutional scholarship should be (further) opened up and integrated with insights from other disciplines, without loosing its audience. In this article, I try to propose a tentative model to do as much, by situating the judges on a complex field of tension between rule of law values and pragmatism. I apply the model to some Belgian constitutional case law regarding federalism.