Journal Article

The indelible science of law

Alexander Somek

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 7, issue 3, pages 424-441
Published in print July 2009 | ISSN: 1474-2640
Published online July 2009 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mop013
The indelible science of law

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  • Constitutional and Administrative Law
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It is often remarked that, with the rise of the judicial resolution of constitutional questions, European constitutional systems have come to resemble a variation on the common law, as cases decided by constitutional tribunals appear to be imbued with an oracular quality with regard to constitutional meaning. Notwithstanding this widespread assimilation of a common law mindset, there is value in an older tradition of legal science that persists in some circles—primarily in Continental Europe—and forms the backbone of legal education and scholarship. Where the tradition persists, case law may be relevant, and authoritative, only if the ideas it produces can be ratified on the basis of a “scientific” structure of conceptual differentiation. This approach—which might be described as the pursuit of excellence in thinking—is not a mere intellectual conceit; rather, this essay argues, in a “postdemocratic” era, legal science may offer opportunities for empowerment of a public that finds itself disenfranchised by overconfident courts.

Journal Article.  8101 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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