Constitutional scholarship, especially when addressing the interpretive question, can often resemble political philosophy—however, we should avoid regarding it as a purely abstract discourse.

Rather, this theoretical activity must be linked to its concrete purposes, namely the social benefits that are thought to accrue from winning the normative argument in constitutional cases.

The assumption is that litigation can evoke a declaration of rights from courts; that it can, further, be used to assure the realization of those rights; and, finally, that realiza­tion is tantamount to meaningful change. The myth of rights is, in other words, premised on a direct linking of litigation, rights, and remedies with social change.^[424]

Some forms of constitutional scholarship place more emphasis on the instru­mental aspect: for example, critical scholars who would not choose a judicially administered charter of rights, nonetheless seek to shift constitutional adjudica­tion towards their preferred political ends.^[425] However, instrumental considera­tions also inform liberal legalist scholars, such as Dworkin, who regards the outcome of constitutional adjudication as of ‘capital importance’^[426] in protecting individual rights. The pervasive nature of this assumption is also reflected in the level of resources devoted to constitutional litigation by other actors, such as pressure groups^[427] and governmental departments.^[428]

In this chapter, I test liberal legalist assumptions of instrumentalism against the claims of external legal pluralism with reference to case studies focusing on constitutional litigation in race relations, abortion and freedom of expression. These areas represent some high profile issues where campaigners have sought to effect social change through constitutional law, and are also where consider­able social scientific research has now been conducted on the impact of this litigation. My argument is that the available evidence supports Santos’s account of the social world as a site of internormativity, which necessarily constrains the effectiveness of state constitutional law. At best, claims about the direct effects of adjudication are exaggerated, and at worst, constitutional law is often not even indirectly effective, but indeed counterproductive. Accordingly, I conclude that the persistence of a constitutional epistemology based in the command theory of law is not justified by the empirical record.