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Neither "Genteel Hoax" Nor "Slot Machine:" Constitutional Interpretation in Policy-Oriented Perspective

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Description

Book: Human Flourishing: The End of Law

Chapter Description:

In the United States, most scholarship on constitutional interpretation battles under the clashing banners of Originalism and Living Constitutionalism. The former has ostensibly won the battle, though not yet the war, over interpretation. How either theory impacts human flourishing or other values served by law is often lost in the crossfire. This essay explores the relationship between Originalism and Policy-Oriented Jurisprudence, a human flourishing-centered school of legal thought founded by Myres McDougal and Harold Lasswell. It concludes that they are meaningfully compatible. The article surveys Originalism’s development, highlighting its recent distinction between interpretation and construction, which has undone some historical differences with competing theories. It also surveys Policy-Oriented Jurisprudence’s theory of constitutional interpretation. Acknowledging critical similarities between it and Originalism, the article suggests that the latter could benefit from the former by integrating constitutional construction with some principled, empirical enforcement of the textually embedded concepts of human flourishing and dignity. It also suggests that Originalism pay more attention to legal hermeneutics in international law. A result that could bear the name of “Originalism with a Human Face.”

ISBN

978-90-04-52483-5

Publication Date

9-20-2023

Publisher

Brill | Nijhoff

Keywords

Policy-Oriented Jurisprudence, constitutional law, constitutional interpretation, legal hermeneutics, originalism, living constitutionalism, human rights, the rule of law

Disciplines

Constitutional Law | Human Rights Law | Jurisprudence | Law | Rule of Law

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