Conor Casey (University of Liverpool School of Law & Social Justice) has posted Constitutional Design and the Point of Constitutional Law ((Forthcoming 2022) American Journal of Jurisprudence) on SSRN. Here is the abstract:
This essay offers an account of the diverse range of rich insights Professor Finnis’ work offers for several perennial questions of constitutional theory: such as what valuable moral ends constitutional law serves, how best to approach the design of constitutional arrangements and institutions, and how to best approach constitutional interpretation.
I proceed in four parts. The first two parts begin by looking at Finnis’ treatment of the purpose of law as a social practice and then, more specifically, the point or purpose of channelling political power through constitutional law. Having outlined the point or purpose of constitutional law and constitutional institutions, I then probe what Finnis has to say about questions of constitutional design. Finally, I give an account of how Finnis’ work approaches constitutional interpretation.
Several trends emerge from my study of Finnis’ constitutional thought. When it comes to questions of institutional design, Finnis clearly considers certain forms of constitutional ordering – centred around a mixed or balanced constitution – to be particularly prudent and conducive to securing the common good of a polity. Finnis also appears particularly wary of what he regards as an imprudent trend in contemporary constitutional systems of permitting apex judicial bodies to approach their adjudicative functions in a way that transforms them into de facto lawmakers, empowered to make rules governing future treatment of some of a community’s most sensitive moral-political questions.
When it comes to how officials should act in the course of constitutional adjudication and interpretation, Finnis is committed to at least two propositions that cabin the reasonableness and prudence of their actions. One is that a capacious ‘living instrument’ approach to interpretation – that allows judges to functionally displace the principles posited in constitutional text – risks undermining law’s critical co-ordinating and settlement function and shows disrespect for the choices made by legitimate authority expressed through the propositions they decided to enact into law. For Finnis, officials also cannot reasonably aim to be exclusively concerned with socio-historical facts when engaged in interpretation. For Finnis, such an approach is unreasonable because it involves the deliberate neglect of true moral principles that are always reasonable to consider part of our law and a necessary feature of resolving hard cases in a morally sound way.
Professor Finns’ work on the natural law tradition is widely, and properly, regarded as one of the most important contributions to legal theory made in the last century. In a time when we are seeing a healthy resurgence of interest in classical legal approaches to public law, I hope this essay demonstrates that there is also much to be gained by engaging with his sophisticated treatment of some perennial issues of constitutional theory.
Highly recommended.