The indelible science of law

Abstract

It is often remarked that, with the rise of the judicial resolution of constitutional questions, European constitutional systems have come to resemble a variation on the common law, as cases decided by constitutional tribunals appear to be imbued with an oracular quality with regard to constitutional meaning. Notwithstanding this widespread assimilation of a common law mindset, there is value in an older tradition of legal science that persists in some circles - primarily in Continental Europe - and forms the backbone of legal education and scholarship. Where the tradition persists, case law may be relevant, and authoritative, only if the ideas it produces can be ratified on the basis of a "scientific" structure of conceptual differentiation. This approach-which might be described as the pursuit of excellence in thinking - is not a mere intellectual conceit; rather, this essay argues, in a "postdemocratic" era, legal science may offer opportunities for empowerment of a public that finds itself disenfranchised by overconfident courts. © The Author 2009. Oxford University Press and New York University School of Law. All rights reserved.