The Dogmatic Slumbers of Constitutional Doctrine

Abstract

My forthcoming (2019) dissertation raises the question whether European constitutional scholarship has adequately dealt with some of the challenges American Legal Realists have launched. There, I undertake to reconstruct some of the claims of American legal realism so as to be able to critically subject European constitutional scholarship to these claims. Conversely, I (re)construct some theoretical and methodological answers that have been proffered so as to fend off the aforementioned challenges. The defense resting on the justificatory focus of legal scholarship (as opposed to a focus on discovery) has been one of the common responses, as I try to explain below, to dislodge realist criticism. Relativizing the context distinction in the context of legal scholarship, as I will try to do here, does not by itself provide a conclusive argument for a reconceptualization of doctrinal scholarship. However, in my dissertation I offer additional arguments to establish the need for this reconceptualization, focusing on the relativity of the autonomy of the law as an object of inquiry for legal scholarship, and discussing the concept of “reification” as I see it emerging out of legal realist thought. This is a work in progress, which I am happy to discuss further.