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

Published online by Cambridge University Press:  16 December 2008

Sotirios A. Barber
Sotirios A. Barber
Affiliation:
University of Notre Dame
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Extract

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. The Western Political Quarterly has 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.

Type
Forum
Information
Studies in American Political Development , Volume 3 , Spring 1989 , pp. 56 - 73
Copyright
Copyright © Cambridge University Press 1989

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References

1. Stumph, Harry, “Whither Political Jurisprudence: A Symposium,” Western Political Quarterly 36 (12 1983): 533–70CrossRefGoogle Scholar; page numbers hereafter cited in the text.

2. Smith, Rogers, “Political Jurisprudence, the ‘New Institutionalism,’ and the Future of Public Law,” American Political Science Review 82 (03 1988): 90CrossRefGoogle Scholar.

3. Ibid., 90, citing March, James G. and Olsen, Johan P., “The New Institutionalism: Organizational Factors in Political Life,” American Political Science Review 78 (1984): 734–49CrossRefGoogle Scholar.

4. Ibid., 2, citing Skocpol, Theda, Vision and Method in Historical Sociology (Cambridge: Cambridge University Press, 1984), 4CrossRefGoogle Scholar.

5. Ibid., 89–90.

6. Smith, Rogers, Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985), chaps. 1, 8–9Google Scholar; for the centrality of peace as a value to both Hobbes and Locke, see ibid., 18–19. See also Berns, Walter, “Judicial Review and the Rights and Laws of Nature,” in Philip Kurland, Gerhard Casper, and Dennis Hutchinson, eds., 1982 Supreme Court Review (1983): 49–83Google Scholar.

7. For a connection between classical bourgeois liberalism and the eventual abandonment of moral and political philosophy in constitutional theory, see Barber, Sotirios, “The New Right Assault on Moral Inquiry in Constitutional Law,” George Washington Law Review 54 (1986): esp. 266–75Google Scholar. For a general account of social science positivism as a conservative political force, see Fay, Brian, Social Theory and Political Practice (Winchester, Mass.: Allen Unwin, 1976), 57–64Google Scholar.

8. For the implications of this proposition for constitutional choice, see Barber, Sotirios, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984): 116–21, 141–42, 224n43Google Scholar.

9. See Moore, Michael, “A Natural Law Theory of Interpretation,” Southern California Law Review 58 (1985): 288–301Google Scholar.

10. See Smith, Liberalism and American Constitutional Law, 187, 213, 222, 226, 238, 305; see also Smith's embrace of Rorty, discussed below.

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13. Smith, “Political Jurisprudence,” 90.

14. See Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) 134–37Google Scholar; Law's Empire (Cambridge: Harvard University Press, 1986), 130–39.

15. For general accounts of the rise and decline of an older social science positivism which treats values as rationalizations for behavior and activities caused by subrational determinants, see Purcell, Edward, The Crisis of Democratic Theory (Lexington: University Press of Kentucky, 1973), chaps 3, 6, 10Google Scholar; Fay, Social Theory and Political Practice; Bernstein, Edward, Restructuring Social and Political Theory (Philadelphia: University of Pennsylvania Press, 1976)Google Scholar; Beyond Relativism and Objectivism (Philadelphia: University of Pennsylvania Press, 1983).

16. Smith, , “Political Jurisprudence,” 99, quoting Braudel, Fernand, On History (Chicago: University of Chicago Press, 1980), 31Google ScholarPubMed.

17. Smith, “Political Jurisprudence,” 100; page numbers hereafter cited in text.

18. For arguments that judgments of this kind are inseparable from moral philosophic activity, see Barber, On What the Constitution Means, 84–85; Dworkin, Ronald, A Matter of Principle (Cambridge: Harvard University Press, 1985), chap. 2Google Scholar; Moore, “A Natural Law Theory of Interpretation,” 322–38.

19. See Rorty's, reply to some of his realist critics in Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982), xxi–xxxviiGoogle Scholar.

20. See Wood, Gordon, “The Fundamentalists and the Constitution,” New York Review of Books 33 (02 18, 1988)Google Scholar; Barber, “The New Right Assault.”

21. See, for example, Richards, David A. J., “Interpretation and Historiography,” Southern California Law Review 58 (1985)Google Scholar.

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24. See, for example, Moore, Michael, “Moral Reality,” Wisconsin Law Review (1982): 1098, 1143Google Scholar.

25. Macedo, Stephen, “Liberal Virtues of Constitutional Community,” Review of Politics 50 (Spring 1988): 215–40CrossRefGoogle Scholar.

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27. See Purcell, Crisis of Democratic Theory, chap. 11.

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30. Pritchett, C. Herman, “Public Law and Judicial Behavior,” in Irish, Marian, Political Science: Advance of the Discipline (Englewood Cliffs, N.J.: Prentice-Hall, 1968), 219Google Scholar.

31. This section borrows from Barber, Sotirios and Tulis, Jeffrey, “Toward a New Constitutionalism in Constitutional Studies and American Institutions” (paper delivered at APSA Annual Meeting, Chicago, 1987)Google Scholar.