Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 11: Legal pragmatism and comparative constitutional law

David Landau

Abstract

Abstract: This chapter considers the place of legal pragmatism in comparative constitutional law. The article first defines legal pragmatism as a theory that is anti-formal, eclectic, contextual, and instrumental, and articulates and responds to some common critiques of these central tenets. It then explains that while legal pragmatism is sometimes viewed by its adherents (such as Richard Posner) as being mostly of relevance in United States constitutional theory, it actually has much to say to the field of comparative constitutional law. The chapter argues that the insights of pragmatism can usefully be viewed in synthesis with important tools of comparative constitutionalism, such as proportionality, in order to suggest ways in which those tools can be broadened and improved. It also can help to point out the importance of “blind spots” that are de-emphasized in existing theories, like questions of remedy and case selection.

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