The Download of the Week is Keeping it Real in Constitutional Theory by Aileen Kavanagh. Here is the abstract:
In constitutional theory, we are familiar with the claim that a good theory must fit and justify constitutional practice. However, the criterion of ‘fit’ sometimes gets lost in the quest to provide a bold normative theory about what constitutional should be. Using the debate about the legitimacy of constitutional judicial review as an example, this article warns against a problematic disjuncture between theory and practice in the domain of constitutional law. The key argument is that credible normative theorising about constitutional law should rest on a descriptively plausible foundation. Absent such grounding, there is a risk that our theories of constitutionalism become theories of a fiction. To avoid this hazard, we need to ‘keep it real’ in constitutional theory and comparative constitutional law.
And from the paper:
My underlying aim is twofold. The first is to rescue so-called ‘descriptive’ analysis from scholarly disdain, highlighting the intellectual value and analytical payback of getting our facts straight about how constitutional government works. The second is to highlight the deep interdependence between ‘descriptive’ and ‘normative’ analysis. As Jerry Mashaw observed, ‘our vision of what is guides our approach to what ought to be’.4 The normative depends on the descriptive to a large degree. Rejecting the tendency to discredit descriptive inquiries as beneath the pay-grade of the high-minded normative theorist, I argue that constitutional theorists of all stripes would benefit from submitting their theories to a rigorous reality-check.
And from a bit later in the paper:
However, whilst accepting the value of normative prescription, justification and critique, I would nonetheless strike two notes of caution. The first is a modest and realistic acceptance that the key constitutional actors in any system are unlikely to reorient their behaviour to heed the recommendations of normative constitutional theorists. In this sense, bold claims about what judges, legislators and government Ministers should and should not do may fall on deaf ears. Most likely, the only people listening to the arguments of normative constitutional theory are fellow constitutional theorists. Second, no matter how bold our normative prescriptions to constitutional actors may be, they should be suitably constrained and informed by an acute appreciation of the scope and limits of institutional roles. Recommendations to judges or legislators about what they should do, must be grounded in an appreciation of what they can and cannot do. Absent that grounding ‘the high road of normative theorising may become the path of wishing thinking’.131 This is not to deny that normative arguments, utopian imaginings and ideal-case scenarios may play a valuable heuristic role in helping us to articulate the goals or values which the legal and constitutional system should instantiate.
132 However, in the realm of theorising about constitutional government – especially questions about the allocation of authority and power amongst different institutions – philosophical analysis must be supplemented by institutional analysis. This means that the institutional structures, constraints, norms, practices and role-based imperatives of constitutional government must be built into the analysis at some stage.133
A deep and important paper. Highly recommended. Download it while it’s hot!