Constitutional Scholars as Constitutional Actors

DOI10.1177/0067205X20955056
Publication Date01 December 2020
AuthorLiora Lazarus
Date01 December 2020
SubjectArticles
Article
Constitutional Scholars
as Constitutional Actors
Liora Lazarus*
Abstract
This article explores the idea that constitutional scholars may be thought of as constitutional
actors analogous to integrity institutions and examines the normative implications of conceiving of
constitutional scholars in this way. One implication of such an analogy is to strengthen academic
freedom and protect the integrity and independence of constitutional scholarship. Moreover,
viewing constitutional scholars as constitutional actors also sharpens our understanding of the
ethical obligations of constitutional scholarship: of ‘academic self-awareness’ and of ‘decisional’ and
‘institutional’ independence. This duty of independence may be equally important to the public
standing, expert status and integrity of the constitutional law discipline in this highly politicised
populist moment.
I Introduction
Few constitutional scholars would dispute that Carl Schmitt play ed a legitimating role in the
downfall of the Weimar Republic or that Albert Venn Dicey defined the UK and other common-
wealth constitutions. Why then is there no general conception of constitutional scholars as con-
stitutional actors?
1
It is now well established that ‘to understand how our Constitution and laws are
practised, it is necessary to study and understand many more institutions in the system than simply
* Associate Professor in Law, Faculty of Law , University of Oxford; F ellow in Law, St Anne’s Co llege, Oxford; Head
of Research, Bonavero Institute of Human Rights, Faculty of Law, University of Oxford. The author may be
contacted at liora.l azarus@law.ox.ac .uk. I am grateful to Gabr ielle Appleby, Vanessa MacDonnell, Karen Dr ake,
Paul Kildea, Catheri ne O’Regan and the member s of the Bonavero Instit ute of Human Rights Persp ectives seminars
for their comments and feedback on this paper. Dylan Lino’s suggestions for fur ther reading raised my game (though
none of my mistakes are his).
1. Whileattention has been paid to these actors as ‘public intellectuals’ or ‘political actors’ this is distinct in my view from
the idea of ‘constitutional actors’ within a constitutional framework. On the role of Dicey as a ‘public intellectual’ see: S
Collini, Public Moralists: Pol itical Thought and Intellectual Life in Br itain, 1850–1930 (Clarendon Press , 2006)
288–99. On Carl Schmitt’s role in shaping international law see: Martti Koskenniemi, The Gentle Civilizer of
Nations (Cambridge University Press, 2001) ch 6. On the role of ‘legal complex’ on the political stage see: Lucien
Karpik and Terence C Halliday, ‘The Legal Complex’ (2011) 7 Annual Review of Law and Social Science 217; Yves
Dezalay and Bryant G Garth, The Internationalization of Palace Wars (University of Chicago Press, 2002).
Federal Law Review
2020, Vol. 48(4) 483–496
ªThe Author(s) 2020
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DOI: 10.1177/0067205X20955056
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