Constructed Functionalism: A Revisionist Framework for the Functional Analysis of Courts

Abstract

Courts are widely acknowledged to play an important role in constitutional systems, yet a unified, precise, and self-conscious theoretical framework for the functional analysis of judicial institutions remains lacking. In this light, the purpose of this paper is to propose a revisionist functional approach, which I term constructed functionalism, that draws heavily from, and modifies significantly, structural functionalist theory via the selective use of rational choice theory and more recent scholarship in public law and comparative legal institutions. Via structural functionalism courts are characterized as serving both a particularistic manifest function (triadic dispute resolution) and a systemic latent function (the promotion of the health of the constitutional system). Yet unlike structural functionalist analysis, the latent function is not seen as natural or given, but is rather modeled as politically constructed by judges embracing widely varying constitutional ideologies and subsequently deriving from them equally divergent blueprints of how best to promote constitutional-systemic health. Thus while judges are portrayed as (self-consciously) Durkheimian figures, a traditional structural functionalist interpretation of the constitutional system and its interaction with society is rejected. Rational choice theory is incorporated to explain how judges pursue their latent function – strategically and subject to exogenous political and institutional constraints. Finally, from recent scholarship on popular constitutionalism, the judicially constructed latent function is characterized as open to contestation by non-judicial actors, revealing the disharmonies endogenous to constitutional law. Such conflict inherent to the law arises precisely because judges are seldom able to monopolize the marketplace of constitutional ideas and can also misdiagnose systemic needs. Due to space constraints, the use of empirical examples is limited to providing illustrations of the framework’s components via brief case studies of noteworthy US Supreme Court cases.