Martin Loughlin (London School of Economics – Law School) has posted Whatever Happened to the Passive Virtues? on SSRN. Here is the abstract:
This article presents an account of a distinctive thesis concerning the appropriate judicial role in engaging in constitutional review. This thesis, which derives from an American tradition of thought advocating judicial self-restraint, reaches its apogee in Alexander Bickel’s book on The Least Dangerous Branch (1962). Arguing that no good society can exist without principles and that no viable society can be principle-ridden, Bickel maintains that in exercising its constitutional responsibilities the judiciary is obliged to negotiate the tension between principle and expediency. Bickel then proceeds to explain that this is done by adopting various techniques of constitutional avoidance, which he labels ‘the passive virtues’. The article examines these methods, notes that they have now fallen from favour, and ruminates on what has been lost.
Highly recommended.