On the past and future of European constitutional scholarship
* Professor of law, New York University School of Law. Email: mattias.kumm{at}nyu.edu
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This comment takes issue with three claims made by Armin von Bogdandy about the role of "doctrinal constructivism" as it relates to the European public law tradition. First, the rise of constitutional law as a subdiscipline of law is not plausibly explained by the adoption of a conceptually focused positivist method. Its successful institutionalization within the law faculties has depended, first and foremost, on the establishment of a relatively stable constitutional settlement. The nature of that settlement, rather than the virtues intrinsic to any particular methodology, is the most influential factor in determining what kind of methodology becomes dominant. Second, it is probably misleading to characterize mainstream contemporary European legal scholarship as doctrinal constructivism. If the varieties of legal scholarship that count as mainstream in Europe today have a common core, it consists of a rejection of the reductivism that has classified law and legal scholarship as either formal/conceptual, moral, or empirical/factual. European legal scholarship seeks, for the most part, to integrate the formal, empirical, and moral dimensions of the law into a distinctively legal point of view. In that sense, it has always been—even in Germany—far more open to interdisciplinary and theoretical work than von Bogdandy's account suggests. Third, while he correctly describes an interesting and deep difference between contemporary European and American cultures of legal scholarship and teaching—a difference that is apparent to anyone who has experienced both—von Bogdandy has overlooked the salutary effect of American elite law school culture on European scholarship. It has encouraged European scholars to overcome the residual habits of a conceptually focused positivist complacency and more widely reembrace the study of law as a theoretically ambitious, internally multidisciplinary exercise.