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Allan, Cook, & Poole on Brudner on Constitutional Theory

By Lawrence Solum

Thomas M. Poole (London School of Economics & Political Science) has posted The Devil's Account: Men, Morals, and Constitutional Goods on SSRN. Here is the abstract:

Alan Brudner's constitutional theory offers us an ideal constitution or 'heaven of laws'. His theory maps a constitution heavy with law. Law permeates and supports a host of dense networks and relationships between individuals, communities and the state. It also specifies a very comprehensive set of rights. These detailed prescriptions are designed to take constitutional form, with the result that they are removed largely from the remit of normal political and ideological debate. This paper probes this vision of constitutional order. It focuses on two particularly revealing aspects of the theory - its Aristotelian perfectionism and the educative role it affords the state. Drawing on an older tradition of liberal thought exemplified by Hume, the paper concludes that the extremely 'thick' legal constitution of the type Brudner presents is not one to which liberals should subscribe. His 'heaven of laws', since it envisages a state of political changelessness, amounts ultimately to a particular sort of tyranny in which the individual is trapped once more by the bonds of fate.

And Philip Andrew Cook (Department of Government, LSE) has posted Fairness, Consensus, and the Justification of the Ideal Liberal Constitution on SSRN. Here is the abstract:

In Constitutional Goods Brudner argues that the justification of the ideal liberal constitutional must be based on an alternative conception of public reason from that that presented by Rawls in Political Liberalism. This paper sets out the disagreement between the two notions of justification, and argues that Brudner's proposed account is problematic on two accounts. Firstly, it seems internally inconsistent. Brudner's alternative to Rawls's overlapping consensus, a convergent consensus on an inclusive conception of liberalism, will be impossible given the plural and often contradictory nature of differing liberal doctrines. Secondly, even if such a consensus is possible it will be characterized by modus vivendi rather than a reasonable agreement based on the value of fairness. Consequently, Brudner's notion of public justification will lack both fairness and consensus, and should therefore be rejected as the basis for the ideal liberal constitution.

And T. R. S. Allan (University of Cambridge - Faculty of Law) has posted In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law on SSRN. Here is the abstract:

Brudner argues that liberal constitutionalism, or the rule of Law, requires the adoption of a written constitution, regulating the respective powers of court and legislature. In his analysis, the common law constitution is associated with a libertarian paradigm that gives way, in part, to an egalitarian one embodied in a sovereign constitutional text. I argue, to the contrary, that the preservation of the rule of Law, including the protection of liberal rights, does not require a codified constitution, but demands only the consistent application of the correct legal principles to particular cases. Statutes must always be interpreted consistently with such principles: their meaning and validity are alike dependent on their compatibility with fundamental constitutional rights. Demands that cannot be acknowledged as legitimate requirements by an independent moral agent cannot qualify as law.

Full post as published by Legal Theory Blog on February 02, 2009 (boomark / email).