Abstract

This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the paper discusses why the idea of generic constitutional law should matter to legal academics, and whether judges can or should resist its development.

Disciplines

Comparative and Foreign Law | Constitutional Law | Courts | Jurisprudence | Public Law and Legal Theory

Date of this Version

September 2004