Elgar Monographs in Constitutional and Administrative Law series
Chapter 3: From principles to institutions
By criticizing PEP, I have argued that we have good reasons to impose substantive or outcome-related limits on the political decision-making process. Many supporters of the New Constitutionalism assume that if they have a strong case for imposing substantive limits on the outcome of collective decision-making, they have already won the debate. By adding some uncontroversial premises to the argument for those limits, so the argument runs, we are inevitably led to the desirability of constitutional review. This position would be plausible, if the theories of constitutional interpretation imposed sufficiently strong limits on judicial discretion and judges could enforce the substantive limits of political decisions without making controversial value judgements, relying exclusively on their superior legal expertise. According to this view, constitutional review is legitimate exactly because judges are not moral arbitrators. A fundamental assumption of my argument is that this position is untenable. In the debate about the nature of constitutional interpretation I side with Ronald Dworkin, who claims that, in most cases, judges cannot avoid the moral reading of the constitution. I contend that when judges apply highly abstract and value-laden human rights, they have to articulate and give more specific content to those rights and they do become moral arbitrators in the sense the term is explained in the previous chapter. I am aware that it would be a fatal mistake to build my case against the New Constitutionalism on an unsubstantiated assumption.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.