Landau, David --- "Legal pragmatism and comparative constitutional law" [2018] ELECD 103; in Jacobsohn, Gary; Schor, Miguel (eds), "Comparative Constitutional Theory" (Edward Elgar Publishing, 2018) 208

Book Title: Comparative Constitutional Theory

Editor(s): Jacobsohn, Gary; Schor, Miguel

Publisher: Edward Elgar Publishing

ISBN: 9781784719128

Section: Chapter 11

Section Title: Legal pragmatism and comparative constitutional law

Author(s): Landau, David

Number of pages: 21

Abstract/Description:

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.