Constructed Functionalism: A Revisionist Framework for the Functional Analysis of Courts
Tommaso Pavone
Princeton University - Department of Politics
November 17, 2013
Abstract:
Courts are widely acknowledged to play an important role in constitutional systems, yet a unified, precise, and self-conscious theoretical framework for the functional analysis of judicial institutions remains lacking. In this light, the purpose of this paper is to propose a revisionist functional approach, which I term constructed functionalism, that draws heavily from, and modifies significantly, structural functionalist theory (from sociology) via the selective use of rational choice theory and more recent scholarship in public law and comparative legal institutions (from political science). The objective is to develop a more refined and explicit analytic theory of the functions that the preeminent legal institution – the court – serves in a given constitutional system, and to accomplish this in a way that can facilitate comparative analysis. Due to space constraints, the use of empirical examples is limited to providing illustrations of the framework’s components via brief case studies of noteworthy US Supreme Court cases.
Number of Pages in PDF File: 41
Keywords: function, functionalism, courts, constitutions, constitutional systems, judges, constitutional ideology
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2358777
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