Academic

Murkens on Originalism & Comparative Constitutionalism

By Lawrence Solum

Jo Eric Khushal Murkens (London School of Economics - Law Department) has posted Comparative Constitutional Law in the Courts: Reflections on the Originalists' Objections on SSRN.  Here is the abstract:

The controversy surrounding the judicial use of comparative constitutional law is not new. However, the debate has recently been reignited by a number of US Supreme Court justices who have spoken out on the use of non-US law in the Court. Scalia opposes, and Breyer favours, references to 'foreign law'. Their comments, made both within and outside of the Court, have led to a reaction by scholars. Arguably the debate is US-specific as it resembles the different views regarding constitutional interpretation, namely whether the Constitution's original, or rather its current, meaning is determinative. Yet the debate also raises broader issues of constitutional theory and politics: formal vs substantive legitimacy, globalisation of the courts, judicial sleight of hand, the cultural foundations of constitutional law, and the citation of non-primary sources of law in litigation. The present article explores these issues. It rejects radical approaches (either against or in favour of comparative constitutional law) and instead argues for a more modest process which both identifies the national specificity of law and grasps the mediating potential of law as a self-reflexive discourse.

Recommended--a valiant and intelligent attempt to bridge a vast theoretical gulf.  Although I thought that many of the arguments were not fully developed (see, e.g., his discussion of Habermas versus Scalia in less than a page), this paper nonetheless covers a tremendous amount of important ground and brings a wide range of theory to the table.

Full post as published by Legal Theory Blog on October 21, 2008 (boomark / email).