Political Jurisprudence, the “New Institutionalism,” and the Future of Public Law

For the last quarter century public-law studies have been dominated by “political jurisprudence,” which tries to understand law as a product of political forces. Critics claim this outlook, as now articulated, has generated fragmented empirical work disconnected from larger normative issues. This essay uses recent “institutionalist” or “structuralist” perspectives, based on critiques of pluralist political science and both Marxist and functionalist sociology, to propose a political approach to public law studies that can avoid such criticisms. If both empirical and normative public-law scholars took as their central concern the “dialectic of meaningful actions and structural determinants” and recast their research in several specified ways, they might be better able to describe the role of normative ideas in law and to achieve a broader empirical agenda that could ground and inform normative debates.