International Journal of Constitutional Law Advance Access originally published online on April 30, 2009
International Journal of Constitutional Law 2009 7(3):364-400; doi:10.1093/icon/mop009
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The past and promise of doctrinal constructivism: A strategy for responding to the challenges facing constitutional scholarship in Europe
* Director, Max Planck Institute for Comparative Public Law and International Law; Professor at the Goethe-Universität, Frankfurt. Email: bogdandy{at}mpil.de
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Abstract |
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Doctrine, although challenged from its very beginnings as scientifically unsound, politically conservative, or socially irresponsible, forms the heart of constitutional scholarship in Europe. This article presents the development of legal doctrine in the twentieth century among the various national systems; it focuses not only on the elements in common but also on the particularities and idiosyncrasies of the individual systems. The aim is to suggest a strategy for responding to three contemporary challenges to the national scholarly cultures: the project of a European research area; the rapid development of a European legal area now faced with an ever-greater number of issues of constitutional importance; and the low regard accorded to doctrine by leading U.S. institutions. In light of these challenges, the article proposes a more fully evolved version of the traditional understanding of doctrine, presented here under the rubric "doctrinal constructivism." It is proposed that this become the focus of a yet-to-be-created discipline of European constitutional scholarship, which will define both its role and identity. Constitutional scholarship in the European legal area, thus, should reposition itself, focused on but not limited to doctrinal constructivism.