—Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco
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In a paper talk I gave late last month I got advice that had me thinking about the question above.
“Prioritize ideas as opposed to authors or even author’s books,” said the commenter.
The paper was both a response to Rosalind Dixon’s forthcoming book Responsive Judicial Review (RJR) and the beginnings of a comparative constitutional law theory inspired by my engagement with her ideas. Dixon considers RJR neo-Elyian because it updates John Hart Ely’s vision of courts as correctors of deficiencies in the democratic process. One of my arguments is that the book is also profoundly anti-Elyian because it advocates noninterpretivism, an approach to judicial review Ely had pointedly rejected. Naturally I dwelled on Ely’s works (prominently Democracy and Distrust) as much as on RJR. But more than this, in developing my theory I discussed other books, including Montesquieu’s The Spirit of the Laws, Bruce Ackerman’s We the People 1, and Jack Balkin’s Living Originalism.
“I know that these are major theorists and you are responding to them,” acknowledged the commenter, but, again, “prioritize ideas as opposed to authors.”
Imagine if this comment had been given to an essay on political theory or analytical jurisprudence. Political theory routinely answers its central question ‘How can societies best govern themselves?’ by conversing with authors such as Machiavelli, Hobbes, Locke, and Rawls. Analytical jurisprudence, too, routinely answers its central question ‘What is Law?’ by conversing with authors such as Austin, Kelsen, Hart, and Dworkin. The response might be something like ‘These authors wrote classics in the field. Taking their thoughts seriously throws instructive light on the inquiry.’Read the rest of this entry…