Normative Theory, the “New Institutionalism,” and the Future of Public Law

Abstract

In 1982 a panel of the Western Political Science Association meeting in San Diego took stock of postwar developments in the study of public law among American political scientists. TheWestern Political Quarterlyhas published the papers as a symposium intended to “revive a dialogue” among political scientists about the future of public law. The participants in this symposium generally take for granted the decline among political scientists, academic lawyers, and legal philosophers of the belief that judicial decision can be or even ought to be free of “political” considerations. All seem to agree about the justified triumph of something called “political jurisprudence.” Yet no consensus unites the symposium participants regarding all that political jurisprudence is or ought to be. The participants agree that political jurisprudence should be more than simply teaching and research that confines itself to the legal categories and research methods that dominate lawyers' legal briefs and judicial opinions. They also agree on the need for inquiry into the social-psychological factors of judicial choice, impact studies, alternative methods of conflict resolution, and the like. But the symposium reveals conflicting views regarding the philosophic questions of moral value that enter into legal judgments. Two views in particular stand out.