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A Plea for a Hint of Empiricism in Constitutional Theory:A Comment on Cesare Pinelli’s Constitutional Reasoning and Political Deliberation

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English

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Disciplines

Abstract

Professor Cesare Pinelli’s “Constitutional Reasoning and Political Deliberation” raises several crucial questions about the respective modalities and qualities of decision-making processes in courts and legislatures. As I cannot do justice to all the very pressing questions Pinelli’s paper raises and to all the topics he addresses, I will endeavor to comment upon some points, which, in my opinion, deserve closer examination. I would like to emphasize three related aspects of constitutional scholarship and try to advocate very tentatively the exploration of new perspectives. All of my contributions to this debate can be gathered under the banner of a broad notion of “empiricism,” as they all try in several of their own ways to get “back to earth” and focus on the concrete practices of legal actors. My aim is not to press for the substitution of legal sociology for legal and political philosophy, but, thanks to Pinelli’s contribution, to suggest that some elementary empirical facts should be taken into account in philosophical reflection. First, it seems that less general idealism and more scrutiny of our political societies is necessary to address the topic of constitutional reasoning. Second, the question of “rights” in legal discourse and legal reasoning should be addressed with the full awareness of how much this term is fraught with ambiguities. The study of these ambiguities may be very promising to elucidate some features of the “ideology” of our contemporary constitutional systems. Third, one should realize how much insisting on the specificities of courts to deal advantageously with fundamental social matters could prove misleading, and eventually self-defeating. [First paragraph]

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