Philosophical Foundations of Constitutional Law

341 Pages·2016·3.07 MB·English

by  David Dyzenhaus

PHILOSOPHICAL FOUNDATIONS
OF CONSTITUTIONAL LAW

Philosophical Foundations
of Constitutional Law
Edited by
DAVID DYZENHAUS
University Professor of Law and Philosophy, University of Toronto
and
MALCOLM THORBURN
Associate Professor of Law, University of Toronto
1
1
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Table of Contents
List of Contributors  vii
Introduction  1
David Dyzenhaus and Malcolm Thorburn
I. WHAT IS A CONSTITUTION?
1. The Idea of a Constitution: A Plea for Staatsrechtslehre  9
David Dyzenhaus
2. The Unwritten Constitution as a Legal Concept  33
Mark D. Walters
3. On Constitutional Implications and Constitutional Structure  53
Aharon Barak
4. Reflections on What Constitutes ‘a Constitution’: The Importance
of ‘Constitutions of Settlement’ and the Potential Irrelevance
of Herculean Lawyering  75
Sanford Levinson
5. Constitutional Amendment and Political Constitutionalism:
A Philosophical and Comparative Reflection  95
Rosalind Dixon and Adrienne Stone
II. CONSTITUTIONAL AUTHORITY
6. Constitutional Legitimacy Unbound  119
Evan Fox- Decent
7. Constituent Power and the Constitution  141
Hans Lindahl
8. Popular Sovereignty and Revolutionary Constitution- Making  161
Richard Stacey
9. Constitutional Reason of State  179
Thomas Poole
III. CONSTITUTIONAL FUNDAMENTALS
10. The Rule of Law  201
T. R. S. Allan
11. The Constitutional Separation of Powers  221
Aileen Kavanagh
12. The Framework Model and Constitutional Interpretation  241
Jack M. Balkin
vi Table of Contents
13. Philosophical Foundations of Judicial Review  265
Cristina Lafont
IV. CONSTITUTIONAL RIGHTS AND THEIR LIMITATION
14. Equality Rights and Stereotypes  283
Sophia Moreau
1 5. Proportionality  305
Malcolm Thorburn
Index  323
List of Contributors
T. R. S. Allan is Professor of Jurisprudence and Public Law at the University of
Cambridge and Fellow of Pembroke College, Cambridge.
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at
Yale Law School.
Aharon Barak is President (ret.) of the Supreme Court of Israel; Radzyner School of
Law, Interdisciplinary Center (IDC), Herzliya.
Rosalind Dixon is Professor of Law at the University of New South Wales Australia,
and Director of the Comparative Constitutional Law Project at the Gilbert + Tobin
Centre of Public Law.
David Dyzenhaus is University Professor of Law and Philosophy at the University of
Toronto.
Evan Fox- Decent is Associate Professor in the Faculty of Law at McGill University.
Aileen Kavanagh is Associate Professor in the Faculty of Law at the University of
Oxford and Fellow of St Edmund Hall, Oxford.
Cristina Lafont is Professor of Philosophy at Northwestern University.
Sanford Levinson is W. St John Garwood and W. St John Garwood Jr Centennial Chair
in Law at the University of Texas Law School, and Professor of Government at the
University of Texas at Austin.
Hans Lindahl is Chair of Legal Philosophy at Tilburg University, the Netherlands.
Sophia Moreau is Associate Professor in the Faculty of Law and the Department of
Philosophy at the University of Toronto.
Thomas Poole is Professor of Law at the London School of Economics and Political
Science.
Richard Stacey is Assistant Professor in the Faculty of Law at the University of Toronto.
Adrienne Stone is Professor of Law and Director of the Centre for Constitutional Studies
at Melbourne Law School, and First Vice-P resident of the International Association of
Constitutional Law.
Malcolm Thorburn is Associate Professor in the Faculty of Law at the University of
Toronto.
Mark D. Walters is Professor of Law at Queen’s University, Canada.

Introduction
David Dyzenhaus and Malcolm Thorburn
The design of a volume that deals with the ‘Philosophical Foundations of Constitutional
Law’ faces a major problem. There is not much agreement in philosophy of law about
the correct approach to that discipline. Is it a more normative prescriptive inquiry that
fuses questions of ought and is, or is it, as legal positivists urge, a more descriptive
conceptual analysis? This same problem, of course, affects philosophical analysis of
the foundations of constitutional law, as the philosophers of law who take the concep-
tual approach will think that fundamental questions such as ‘What is a constitution?’
or ‘What is constitutional law?’ can be answered descriptively. In contrast, many who
take the more normative approach will suppose that the answers to such questions are
shaped by one’s normative commitments.
For those on the normative side of this controversy,1 there is no difference between
the methodology of philosophy of law and that of prescriptive constitutional theory
when it comes to answering questions about the philosophical foundations of consti-
tutional law. From this perspective, such questions cannot be answered outside of a
normative framework that seeks to understand law as a matter of principle— the funda-
mental or constitutional principles that structure the relationship between those who
make the law and those who live under its rule.
For those on the descriptive conceptual side of this controversy, philosophy of law
and constitutional theory have little to say to each other. Legal positivist philosophers
of law do not think that their discipline speaks directly to the concerns of constitu-
tional theory, for example, the legitimacy of judicial review of statutes, perhaps the
central issue in constitutional theory in the United States. To make matters even more
complicated, there are also a number of normative constitutional theorists who have
embraced this positivist assumption. They are happy to get on with the job of defending
and elaborating their explicitly normative understanding of constitutionalism without
worrying about the questions that preoccupy philosophy of law, for example, ‘What is
law?’, and ‘Is there a necessary connection between law and morality?’.
The divide that the conceptual approach opens up between philosophy of law and
constitutional theory has therefore had the result that much of what passes for legal
philosophical inquiry into the foundations of constitutional law is hardly informed
by the concerns of constitutional theory. In its insistence that philosophy of law must
be a relentlessly abstract and conceptual analysis, the conceptual approach has largely
1 These include Kantians, who adopt a conception of law according to which legal order is constituted by
an idea of right, common law constitutionalists and others who adopt an interpretivist view of law, notably
Ronald Dworkin, as well as those whose primary influence is Lon L. Fuller’s conception of legality.