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Political Jurisprudence, Public Law, and Post-Consequentialist Ethics: Comment on Professors Barber and Smith

Published online by Cambridge University Press:  16 December 2008

Martin Shapiro
Martin Shapiro
Affiliation:
School of LawUniversity of California, Berkeley
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Extract

At Professional meetings of political scientists and in journals there have occurred discussions of the future of studies in the field of political science traditionally labeled public law. Now we have the further comments by Rogers Smith in the American Political Science Review and Sotirios Barber in this volume of Studies. The editors of Studies have asked me to join in the Smith-Barber dialogue.

Type
Forum
Information
Studies in American Political Development , Volume 3 , Spring 1989 , pp. 88 - 102
Copyright
Copyright © Cambridge University Press 1989

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References

1. The term first appears in Shapiro, Martin, “Political Jurisprudence,” Kentucky Law Journal 52 (1964)Google Scholar in a symposium on jurisprudence. This contribution to Studies was written in Paris under the gun of a very short deadline. As a result I have not been able to provide conventional footnotes, for the most part. Most of the text references are to works cited by Smith and/ or Barber and included in their notes or are to authors and works well known at least to public law specialists.

2. See Shapiro, Barbara, “To a Moral Certainty,” Hasting Law Review 38 (1986): 153–94Google Scholar.

3. Given that I promised a survey, some brief mention of critical legal studies is required. To the extent that it is Marxist, it promises no ethic that has not been found wanting already. To the extent that it is neo-Marxist, it could be anything. Although there is a good deal of neo-Marxist social science and empirical theory, it is extremely disparate and no one supposes that there is a clear, unified body of neo-Marxist ethics. To the extent that it is Unger, the ethics and the social program required by those ethics are now increasingly clear, but they leave no place for public law.

4. See Rasmussen, Hjalte, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: Nijhoff, 1986)Google Scholar; Cappelletti, Mauro, “Is European Court of Justice ‘Running Wild’?” European Law Review 12 (1987): 3–17Google Scholar.

5. Favoreu, Louis, La Politique Saisie par le Droit (Paris and Aix-en-Provence: Economics and Presses Universitaires d'Aix-Marseilles, 1988)Google Scholar; Keeler, John and Stone, Alec, “The Emergence of the Constitutional Council as a Major Actor in the Policy-making Process,” in Hoffman, Stanley and Ross, George, eds., The Mitterand Experiment (New York: Oxford University Press, 1987)Google Scholar; Stone, Alec, “In the Shadow of the Constitutional Council: The ‘Juridicisation’ of the Legislative Process in France,” West European Politics, 09 1988Google Scholar.