BEYOND INSTRUMENTAL POLITICS: THE NEW INSTITUTIONALISM, LEGAL RHETORIC, & JUDICIAL SUPREMACY

In: Polity: the journal of the Northeastern Political Science Association, Band 35, Heft 3, S. 445-460

Abstract

APPLICATIONS OF THE NEW INSTITUTIONALISM TO THE STUDY OF PUBLIC LAW ARE OFTEN GROUNDED IN RATIONAL CHOICE ASSUMPTIONS. THIS TENDS TO REINFORCE A VIEW OF LAW AND LEGAL RHETORIC AS MERELY INSTRUMENTAL TOOLS THAT FOSTER CERTAIN INSTITUTIONAL ARRANGEMENTS. THIS ARTICLE PROPOSES AN ALTERNATIVE APPLICATION OF THE NEW INSTITUTIONALISM THAT, THE AUTHOR ARGUES, OFFERS AN ALTERNATIVE VISION OF LAW AND LEGAL DISCOURSE WHICH CAN BE USED BOTH TO SUSTAIN AND TO CRITIQUE THE POLITICAL ORDER.