2018 - Eleftheriadis - in Defence of Constitutional Law

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REVIEW ARTICLE
In Defence of Constitutional Law
Pavlos Eleftheriadis∗
David Dyzenhaus and Malcolm Thorburn (eds), Philosophical Foundations

of Constitutional Law, Oxford: Oxford University Press, 2016, 332 pp,
hb £60.00.
Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Mod-
ern Constitutional Law, Cambridge: Cambridge University Press, 2016,
299 pp, hb £69.99.
In the Federalist Papers Alexander Hamilton gives a robust defence of consti-

tutional law and especially the review of legislative acts by the judiciary. He
famously notes that
in a government in which [the different departments of power] are separated from
each other, the judiciary, because of the nature of its functions, will always be the
least dangerous to the political rights of the Constitution.1
It is the least dangerous because it is the branch that threatens liberty the
least. He explains that the executive ‘not only dispenses the honors but holds
the sword of the community’, whereas the legislature ‘not only commands
the purse but prescribes the rules by which the duties and rights of every
citizen are to be regulated’.2 So Hamilton argues that liberty is safest where the
courts can monitor a ‘limited’ constitution, ie one where legislative authority
is prevented from violating the rights of individuals. The constitution is guided
by a principle of liberty.
Immediately after saying that, however, Hamilton addresses the question if
this doctrine makes the judiciary ‘superior’ to legislative power, something
he considers unacceptable in principle. He sets out to dispel that impression
by saying that the courts are only ‘an intermediate body between the people
and the legislature in order, among other things, to keep the latter within the
limits assigned to their authority’.3 This means, however, that his account of
constitutional law has changed direction. He has moved from the protection of
liberty to a different principle. His argument is now about the ‘authorisation’,
legal or otherwise, of the people to constitutional bodies to make laws and
∗
Professor of Public Law and Fellow of Mansfield College, University of Oxford
1 James Madison, Alexander Hamilton and John Jay, The Federalist Papers, edited by I. Kramnick
(London: Penguin, 1987; first published 1788) No 78, 437.
2 ibid, 437.
3 ibid, 439.

C 2018 The Author. The Modern Law Review
C 2018 The Modern Law Review Limited. (2018) 81(1) MLR 154–178
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Pavlos Eleftheriadis
other decisions in the name of the people. This argument elevates ‘the people’,
as a third body above both the legislature and the judiciary, whose ‘power is
superior to both’.4 Authorised power is, now, above liberty. And thus Hamil-
ton has taken constitutional law into a blind alley. For what happens if the
people turn themselves against the constitution and against liberty? Constitu-
tional law may become a tool for oppression, not liberty. The challenge is not
purely theoretical. In April 2017 the Turkish people voted, albeit narrowly, in
support of changes to the constitution that will restrict the independence of
the judiciary and the accountability of the executive.5 Similarly, in September
2016 the people of Azerbaijan voted in favour of a similarly authoritarian set
of constitutional amendments.6 We can think of other examples. The majority
is not always aware or supportive of the institutions of liberty.
Hamilton saw clearly the potential for constitutional paradox. He writes:
This independence of the judges is equally requisite to guard the Constitution

and the rights of individuals from the effects of those ill humors which the arts of
designing men, or the influence of particular conjunctures, sometimes disseminate
among the people themselves, and which, though they speedily give place to better
information, and more deliberate reflection, have a tendency, in the meantime, to
occasion dangerous innovations in the government, and serious oppressions of the
minor party in the community.7
This awkward sentence merely records the dangers of constitution-making,

however, it does not respond to them. Hamilton then adds that a ‘momentary
inclination’ should not be a reason for violating the constitution, even if a
majority wanted it. But he does not take his thoughts any further. He does not
say what happens if the majority does act in full conformity with legal process
in order precisely to violate a minority’s constitutional rights and the principle
of liberty. I shall refer to this as ‘Hamilton’s dilemma’.
Modern thinkers are also aware of the dilemma between liberty and author-
ity. The question arises in theory, for example in the philosophical discussions
of the concept of sovereignty,8 but it also arises in practice. The triumph of
populist and nationalist movements in many parts of the world in recent years
4 ibid, 439.
5 For the Turkish referendum and its context see the Report by the Parliamentary Assem-
bly of the Council of Europe, ‘Observations on the Constitutional Amendments in Turkey
(16 April 2017)’ (Rapporteur: Cezar Florin Preda) Doc 14327, 29 May 2017. The constitu-
tional proposals are usefully summarised (and fairly criticised) in Şirin, Tolga, ‘New Constitu-
tional Amendment Proposal in Turkey: A Threat to Pluralistic Democracy!’ Verfassungsblog
31 January 2017 at http://verfassungsblog.de/new-constitutional-amendment-proposal-in-
turkey-a-threat-to-pluralistic-democracy/ (last accessed 10 October 2017).
6 The preliminary report on the Azerbaijan referendum prepared by the Venice Commission is
highly critical of both the content and the process. See European Commission for Democracy
Through Law (Venice Commission), Council of Europe, ‘Azerbaijan: Preliminary Opinion
on the Draft Modifications to the Constitution Submitted to the 26 September Referendum’
Opinion No 864.22016, CDL-PI (2016)010, 20 September 2016.
7 Federalist Papers n 1 above, 440.
8 See, for example, the essays by Loughlin, Walker and Lindahl in M. Loughlin and N. Walker
(eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: OUP,
2007).

C 2018 The Modern Law Review Limited.
(2018) 81(1) MLR 154–178 155

show that majorities can take terrible decisions. They acknowledge that on the
one hand a constitution exists to make everyone equally free. On the other, it
exists to give effect to the people’s collective will. But liberty and authority can
come into conflict because any majority, however momentary or opportunistic,
can become a threat to a minority. But if a constitution exists because of the
authorisation of the majority, then how can it block what the majority desires?
Hamilton’s dilemma leaves constitutional law exposed to arbitrariness and to
incoherence. How can we defend constitutional law?
DEFENDING CONSTITUTIONAL LAW
In Philosophical Foundations of Constitutional Law editors David Dyzenhaus and

Malcolm Thorburn have commissioned new essays addressing these funda-
mental questions about the nature and foundations of constitutional law.9 They
have enlisted a stellar cast of distinguished constitutional lawyers and theo-
rists from around the world. The result is a collection of exceptional quality
and depth. One of the most refreshing aspects of this collection is that it re-
spects no conventional disciplinary barrier. The essays touch on philosophy,
history of ideas, private law, criminal law, political science and discuss examples
from many different jurisdictions (the United States, Canada, Australia, United
Kingdom, France, Germany, India, South Africa and the Middle East). The
collection is divided into four parts: ‘What is a Constitution?’, ‘Constitutional
Authority’, ‘Constitutional Fundamentals’ and ‘Constitutional Rights and their
Limitation’.
In their introduction Dyzenhaus and Thorburn set out a preliminary distinc-
tion between ‘conceptual’ legal theories, emanating mostly from legal positivist
legal philosophers, and ‘normative’ theories, defended mostly by those theorists
who see law as a moral or practical discipline. Dyzenhaus and Thorburn make
it immediately clear that they reject the first approach, which they consider ‘re-
lentlessly abstract’ and ‘ahistorical’.10 They are in agreement here, it seems, with
Ronald Dworkin who has consistently rejected the ‘two-systems’ view, namely
the position that ‘conceptual’ and ‘normative’ questions are different domains
of jurisprudence, so that: ‘law and morals are different systems of norms and
the crucial question is how they interact’.11 Dyzenhaus and Thorburn consider
the ‘conceptual’ approach irrelevant to the concerns of constitutional theory.
They say that the various contributions to this volume ‘trample in different
ways over the divide between the analysis of concepts on the one hand and the
engagement with normative commitments, legal developments and the history
of ideas on the other’.12 In their view, this is the only way in which we can
properly understand the philosophical fundamentals of constitutional law: by
connecting the philosophy of constitutional law to the philosophy of law, to
9 D. Dyzenhaus and M. Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford:

OUP, 2016) 1-6 (Philosophical Foundations).
10 ibid, 2.
11 R. Dworkin, Justice for Hedgehogs (Cambridge, Mass: Harvard University Press, 2011) 402-405.
12 Philosophical Foundations n 9 above, 2.

156 (2018) 81(1) MLR 154–178

political philosophy, comparative law, to the history of ideas and moral philos-
ophy. They say that these chapters ‘together . . . make the case for resetting
the philosophy of constitutional law back into the place it had occupied for
centuries, at the crossroads of engaged normative inquiry’.13
Whatever one thinks of this theoretical argument (and not all contributors to
the volume accept it), the collection itself amply justifies the editors’ choice in
bringing these elements together. This is a wonderful collection of unfailingly
engaging and interesting essays. Virtually every one of them makes a substantial
contribution to the subject matter it discusses. The book will serve as a landmark
in modern constitutional theory and its influence will inevitably reach far into
the future and wide into legal systems of the world. In this short discussion I
shall attempt offer to some reflections on the way these essays respond to the
main themes set out in the introduction, and what I have called ‘Hamilton’s
Dilemma’ between liberty and authority in constitutional law.
WHAT IS A CONSTITUTION?
The first essay in the collection, ‘The Idea of a Constitution’ outlines with clar-
ity and ambition David Dyzenhaus’ own theoretical programme for a moral
reading of constitutional law. The essay proceeds in careful steps, by identifying
the various problems with the theory of the positivist constitution as outlined
by Hart and Kelsen. Dyzenhaus asks ‘what is it that all legal orders share in
having a constitution?’ He starts with Hart’s idea of a ‘rule of recognition’,14
which was presented by Hart as a ‘conceptual’ observation about some ele-
mentary features of our social practices. Dyzenhaus is sceptical of this claim
to conceptual ‘neutrality’ and doubts that Hart’s own argument was faithful
to its methodological commitments. He points out that Hart’s legal positivism
derives its force from a different source, namely from an
understanding of the constitution according to which the constitution is a legal

one that consists exclusively of formal authorization rules – rules that delegate
authority to various institutional actors – and to an understanding of the authority
of the constitution that is ambivalent about whether the source of the authority is
within or without the legal order.15
Reinterpreted in this way, Hart’s seemingly austere, and supposedly descriptive,

constitutional theory takes on a new meaning. Hart claims that, since his theory
is less demanding than other, substantive, theories of law, it is to be preferred,
since it is the more inclusive.16 This is what makes the ‘rule of recognition’ in
Hart’s theory an attractive starting point for law – even though Hart does not
13 ibid, 6.
14 H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 2nd ed, 1994) ch 6.
16 ibid, 13-14. It is obvious - although Hart did not make the connection - that such an austere
theory is very close to Hamilton’s account of the constitution as a set of ‘authorization rules’
emanating from a higher body or authority and ultimately ‘the people’ itself.

(2018) 81(1) MLR 154–178 157

go so far as explicitly making the case for its constitutional legitimacy. In other
words, the legal positivist theory is just another answer to the substance of the
question of the nature of the constitution.
Dyzenhaus then argues that the view of the constitution as an authorisation
structure is strikingly unconvincing. While the idea of a ‘rule of recognition’
seems to say that a constitution is merely a formal structure, so that a consti-
tution contains ‘necessarily’ authorisation rules and contingently, in addition,
substantive principles, that idea is highly implausible and filled with mystery.17
Exploring its different manifestations, Dyzenhaus arrives at the conclusion that
legal positivism makes two claims. First, that the origin of legal validity lies in a
pre-legal master rule (of ‘recognition’ or ‘change’) and, second, that the consti-
tution is part of the law, setting out further authorisation requirements.18 The
two claims, however, are hard to reconcile with one another. The positivists
tell us that a constitution is the result of some kind of delegated power. But
delegation, if it is delegation and not brute force, must be the result of some
prior framework or process of law. But how can there be such a process of law,
if the operation of such a process is itself the foundation of law? Dyzenhaus
observes that in most cases the answer offered by legal positivists is a recourse
to a more complex constitutional theory. Positivism ends up arguing in effect
that
the constitution is legal, that it should be confined to formal authorization rules of

the kind one finds in a parliamentary legal order, and that once so confined, the
law made by the parliament enjoys legitimate authority.19
In effect, the ‘people’ delegate authority from the outside. Yet, such arguments
are not open to the legal positivist, for the very idea of legal positivism was that
at the foundation of law we have a set of facts, not a justification.
In fact, Dyzenhaus argues, the positivist theory is fully embedded in political
theory. The positivist view amounts to just another view of ‘political consti-
tutionalism’, which must itself rely on some substantive or practical account
of appropriate procedures and institutions.20 More importantly, the content
of the constitution is not determined by an original act of foundation. The
17 ibid, 17.
18 ibid, 23.
19 ibid, 23.
20 ibid, 31. Dyzenhaus believes that political constitutionalism is not the only possible theory of
the United Kingdom example. He argues that substantive principles of the constitution have
been part of the common law for a very long time. He relies, for example, on the little known
case of R v Halliday, ex p. Zadig [1917] AC 260, where Lord Shaw gave a dissenting opinion
arguing that a blanket authorisation to the executive to make regulations in relation to wartime
emergency did not include the authority to detain someone in the absence of explicit authority.
The case is interesting because judgments of this orientation become more frequent in England
only after the 1950s. My own view – and I suspect that of Dyzenhaus as well - is that such
principles were evident much earlier in the common law. My personal choice is for Somerset v
Stewart (1772) 98 ER 499, where Lord Mansfield held that slavery was unknown to the common
law on the ground that ‘it is so odious, that nothing can be suffered to support it, but positive
law’. In the absence of a statute introducing it, slavery was therefore unlawful. The case in a
remarkably simple and direct way suggests that the fundamental equality of all human beings is
an underlying presupposition of the law, so that a private transaction for the ‘sale’ of a person as

158 (2018) 81(1) MLR 154–178

content of the constitution ‘is always a matter of both form and substance and,
ultimately, a matter of argument and argumentation’.21 When we unite with
others to empower a sovereign set of institutions, we are also ‘a collective self
that is defined (as human persons are) by commitments and projects that have
normative force in our deliberations’.22 So Dyzenhaus concludes:
the debate about the question of constitutionality is reconceived as one to be

approached within a Staatsrechtslehre, a combination of philosophical and constitu-
tional theory, since it is a question about the correct theory of public legal right,
about the legitimacy of the legal state.23
Dyzenhaus defends the view that principle, not power is the heart of con-
stitutional law. This is a restatement of views that Dyzenhaus has defended
elsewhere,24 but this time they are focused on a robust criticism of the Hartian
tradition.
The inadequacy of descriptive theories of the constitution and their reliance
on some kind of doctrine of power is also a theme carefully and imaginatively
explored by Mark Walters. His essay ‘The Unwritten Constitution as a Legal
Concept’ is one of the most original in the book. Walters’ topic is the unwritten
constitution not in the sense of the United Kingdom constitution, but in the
broader sense of the full set of materials that jointly make constitutional law
possible, whether there is a canonical text or not. This unwritten constitution
includes all rules, principles and practices that may complement a written
text.25 How we understand this depends on our general view of law.
Walters distinguishes between two ‘jurisprudential camps’, namely ‘linear
theories of law’ and ‘circular theories of law’. Linear theories assume that ‘the
authority of legal norms can be traced back along a line of increasingly higher
norms until an originating source is located’.26 By contrast, circular theories see
law as ‘embedded within a network of interlocking strands of normative value
that bend back upon themselves, never reaching an end’.27 Walters relies on a
phrase used by Ronald Dworkin when he explains that for the circular view
‘the legal system is held together not by an originating act or sovereign rule
but by the interpretation of ‘a whole set of shifting, developing and interacting
standards’.28 It follows, for this view, that the constitution is not the foundation
of the legal system, but just a part of it. So Walters says, the constitution is not
a slave must be unlawful. That the case comes in 1772, at the heart of Europe’s Enlightenment
and in the year when Kant supposedly makes his ‘critical’ turn, adds something to its symbolic
power. See, J. Mensch, ‘The Key to All Metaphysics: Kant’s Letter to Herz, 1772’ (2007) 12
Kantian Review 109.
22 ibid, 31.
23 ibid, 31.
24 See, for example, D. Dyzenhaus, ‘Constitutionalism in an old key: Legality and constituent
power’ (2012) 1 Global Constitutionalism 229, D. Dyzenhaus, ‘The incoherencies of consti-
tutional positivism’ in G. Huscroft, (ed), Expounding the Constitution: Essays in Constitutional
Theory (Cambridge: CUP, 2011) 138.
26 ibid.
27 ibid, 34.
28 ibid, 34.

(2018) 81(1) MLR 154–178 159

the ‘Atlas’ holding up the globe of normative value on his shoulders, but rather
it ‘is part of the ordinary strands of normative value that form the sphere itself,
contributing to the centripetal force that gives it a sense of integrity’.29
These are arresting images, but what do they mean? From a few pages down
in the book, from what is chapter four, one can almost hear Sanford Levinson’s
loud impatience with vague metaphors. In his essay on constitutional design,
entitled ‘Reflections on What Constitutes a Constitution’, Levinson, a self-
proclaimed ‘pragmatist’, rejects moral approaches to the constitution, criticises
Dworkin and explicitly endorses Hart’s austere account.30 Levinson writes there
that he believes there is something ‘manifestly foolish’ about trying to design an
‘ideal constitution’ as in the setting of an academic seminar that ostentatiously
avoids reference to the realities of any given society’.31 Levinson deploys his
formidable analytical powers to shoot down the philosophical ambition of
abstract theorists. Is Walters stung by these remarks?
I do not believe he is. Walters offers a response. Walters’ argument is that
his views are a perfectly accurate account of legal practice. Lawyers ordinarily
assume that law has a moral nature. They distinguish between ‘written’ and
‘unwritten’ law in the following way: whereas written law is set by a lawmaker
using a linguistic formula, unwritten law
is a discourse of reason in which existing rules, even those articulated in writing,

are understood to be specific manifestations of a comprehensive body of abstract
principles from which other rules may be identified through an interpretive back-
and-forth that endeavours to show coherence between law’s specific and abstract
dimensions and . . . between law’s various applications.32
In effect, written law and unwritten law work together at the same time. This
is an element of practice, not a philosophical ideal.
Walters explicitly connects this view of law to a deeper philosophical theory
about the nature of truth, which he derives from Dworkin:
The interpretive or circular account of unwritten law is thus consistent with a

more general theory of truth according to which reality about normative value
exists independently of specific things that people write or accept or acknowledge
or assume from time to time, but that this reality cannot exist independently of
the interpretation of what is written, accepted, acknowledged, or assumed in light of
the sphere of normative value within which human thoughts and actions exist.33
Walters links the argument to the tradition of legal humanism of the Renais-
sance, which is an interesting, if unusual, comparison.34 The argument however
29 ibid, 34.
30 ibid, 75-90.
31 ibid, 77.
32 ibid, 35. Walters has explored these themes before in M. D. Walters, ‘Written Constitutions and
Unwritten Constitutionalism’ in Huscroft (ed), n 24 above, 245.
34 See his earlier article M. D. Walters, ‘Legal Humanism and Law as Integrity’ (2008) 67 Cambridge
Law Journal 352.

160 (2018) 81(1) MLR 154–178

is very powerful, because the intellectual development of law as a deliberative

discipline starts precisely at that historical point of revival of critical thinking
and scholarship.
Walters’ argument has philosophical and historical depth, but it is made with
clear reference to constitutional law. He argues that ‘the conception of unwrit-
ten law, by virtue of its interpretive or circular orientation, offers a compelling
account of entire constitutions’.35 This is because all linear theories must say
that the ultimate law, the constitution, should be somewhere outside law. Oth-
erwise it cannot be its cause. So linear theories must say that constitutional law
is not law.
Walters examines Kelsen’s legal theory as the paradigmatically linear theory
of law. Although, he says, Kelsen’s idea of the ‘presupposed’ constitution is
ambiguous, the most obvious reading of it is one that traces the creation of all
law in a ‘special act of will’, not as an operation of the mind. So Kelsen, like
other legal positivists, ultimately sees law as the
unidirectional projection of authority that extends outward as comprehensive

norms in abstracto are laid down to support subsequent norms in concreto leaving no
gaps in the legal order.36
But Kelsen, like Hart, offers a theory of law that relies on an unwarranted
‘bifurcation of ordinary law from its supposed sources’.37 In the end, legal
positivism cannot accommodate fundamental law at all. If it is fundamental, it
cannot be law.
Walters’ solution is highly imaginative. He describes the foundation of law
as a practical judgment, so that ‘the judge at the end of the line of law must
adopt an interpretive perspective that permits that end to be arched back to
encompass its sources, not once but over and over again’.38 Walters develops
this idea both as a philosophical proposition but also as an interpretation of the
common law, for which, Walters says, the constitution has ‘no beginning’, so
that common law constitutionalism:
was a distinctively circular vision jurisprudentially in two ways: first constitutive law
was folded into ordinary law so that law had no beginning or originating source at
all, and, second, the essence of this ordinary law was neither natural law nor ancient
custom as such but an unwritten law that integrated moral principle and practical
experience through ordinary methods of legal reasoning that attended impartially
to precedent and analogy with a view to interpretive coherence between law’s
abstract and specific dimensions.39
The expression is elegant, but the argument is unnecessarily complex. If law

is an interpretive judgment, as Walters believes, echoing Dworkin, Gadamer
and the legal humanists, then, of course, it has no ultimate foundation. All

36 ibid, 45.
37 ibid, 46.
38 ibid, 45.
39 ibid, 47.

(2018) 81(1) MLR 154–178 161

judgments rely on other premises, assumptions and other judgments. They are
responses to questions. One does not need common law constitutionalism or
any other historical model of law to demonstrate this truth. All good legal
reasoning works in this way, irrespective of whether it deals with precedent,
with a civil code, or with a written or unwritten constitution. This is so
irrespective of whether and for whatever reason a jurisdiction has had good
legal scholars and judges practising in it. In effect, Walters’ philosophical view
of law is a lot simpler than his historical view, developed in the second part of
his essay. Little is in fact added to the argument by the detour into ‘common
law constitutionalism’.
The historical part of the essay illustrates, however, some of the ways in
which constitutional law can be best practised in light of the correct theory
of law. In the final section of Walters’ essay he draws together a view of the
practice of the ‘unwritten constitution’ against the background of the ‘circular’
(or just practical and interpretive) view he has just outlined. He postulates two
principles of constitutionalism, which he calls the ‘pervasiveness’ of law and
the ‘ordinariness’ of law.40 ‘Pervasiveness’ means that ‘there can never be a
point where law runs out’. Explicit legal terms are to be interpreted against
the general ‘normative order’. ‘Ordinariness’ means that the constitution is
‘identified and justified as law in the ordinary way’.41 The same legal method
applies to the constitution, as it applies to any other area of law.
Walters ends by returning to the idea of a ‘circular’ legal theory that moves
constantly between general and particular in order to make and justify practical
judgments. Yet, Walters’ argument seems to be missing one central ingredient
of a constitutional theory or of ‘Staatslehre’, as defined by Dyzenhaus as a
question about the correct theory of public legal right or about the legitimacy
of the legal state.42 Walters describes his ideal interpretive theory but does
not say what it is that the theory is interpreting. If we apply the circular
theory to what I called Hamilton’s dilemma, we do not get a clear answer. Are
we interpreting a theory of liberty? Or are we interpreting the authority of
a people? The political content of constitutionalism is strangely absent from
Walters’ theory. If, for example, we go ahead with an interpretive reading
of equality, as proposed for example by Kantian theories of the constitution
(following perhaps Rawls or Simmonds) we start with interpreting at the most
abstract level the principle of liberty.43 If we proceed with an interpretive
reading of ‘majority will’, as proposed for example by Carl Schmitt or by
theorists of ‘political constitutionalism’ such as Richard Bellamy, we start with
interpreting the wishes of the majority.44 Walters’ interpretivism seems to me
to be, thus, only a method taking us towards the answer, but not the answer
40 ibid, 49.
41 ibid, 49-50.
42 ibid, 11 and 32.
43 See, for example, J. Rawls, Political Liberalism (New York: Columbia University Press, 1993) and
N. E. Simmonds, Law as a Moral Idea (Oxford: OUP, 2007).
44 See C. Schmitt, Constitutional Theory (Durham & London: Duke University Press, J. Seitzer
(trans), 2008), R. Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality
of Democracy (Cambridge: CUP, 2007).

162 (2018) 81(1) MLR 154–178

itself (something which Walters accepts at the very end of the essay, when he
says that it has given only the ‘outlines’ of an ambitious theory).45
Interestingly, many essays in the collection take a similarly cautious attitude
towards choosing one horn of Hamilton’s dilemma. After a very rich career in
the judiciary, and having served as President of Israel’s Supreme Court, Aaron
Barak, has emerged as one of the leading constitutional theorists of our era, with
influential essays and books.46 In his essay, ‘On Constitutional Implications and
Constitutional Structure’, he discusses and develops a theory of constitutional
interpretation. Barak suggests that every text has ‘two meanings: an express
meaning and an implied meaning’.47 The ‘express’ meaning is the result of the
language alone and is obtained ‘by applying the rules of semantics and syntax’,
whereas the ‘implied’ meaning is not the result of the dictionary but arises form
‘constitutional structure’.48 Barak argues that
just as the constitutional text imparts legitimacy to the interpretation given to the
express meaning of the constitutional language, the constitutional structure imparts
legitimacy to the interpretation given to the implied meaning of the constitutional
text.49
Barak refers to Dworkin at one point, but Barak’s theory is rather different, be-
cause Dworkin rejects the distinction between ‘express’ and ‘implied’ meanings
and the similar distinction between ‘enumerated’ and ‘unenumerated’ rights in
the Constitution.50 For Dworkin all meaning is the result of interpretation, so
that the distinction between ‘express’ and ‘implied’ meaning makes no sense.
Unfortunately, Barak does not address Dworkin’s point directly and does not
really explain the difference between ‘express’ and ‘implied’ meanings. Nor
does he discuss the potential conflict between what may be the ‘express’ and
what may be the ‘implied’ meaning of the same provision in the same case.
Barak outlines his own ambitious interpretive theory of constitutional struc-
ture, with many examples of ‘constitutional implication’, which include implied
constitutional values, implied constitutional rights and even an implied ‘eter-
nity clause’.51 But his distinction faces a serious problem, which Dworkin’s
argument does not. Should we not simply say that a constitution consists ex-
clusively of ‘express meanings’, rather than ‘implied’ ones? After all the authors
of the constitution only wrote the explicit terms. The implied ones never made

46 See for example A. Barak, Purposive Interpretation in Law (Princeton: Princeton University
Press, 2005), A. Barak, The Judge in a Democracy (Princeton: Princeton University Press, 2006),
A. Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge: CUP, D. Klair
(trans), 2012), A. Barak, Human Dignity: The Constitutional Value and the Constitutional Right
(Cambridge: CUP, 2015)
48 ibid, 58.
49 ibid.
50 See R. Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford: OUP,
1996) 76-81.
51 Philosophical Foundations n 9 above, 62. This is something on which Barak has written before and
which follows some of the judgments of the Supreme Court of Israel in which he took part, see
A. Barak, ‘Unconstitutional Constitutional Amendments’ (2011) 44 Israel Law Review 321.

(2018) 81(1) MLR 154–178 163

it. Barak’s answer is that language is in any way insufficient. Both express and
implied meanings give rise to something else, which he calls ‘constitutional
norms’, so that ‘the source of the linguistic meaning, be it express or implied,
has no bearing on the nature of the constitutional norm extracted from it’.52
The terms point towards norms, but are not themselves norms. But why have
such a duplication of terms? What is the meaning of a constitutional pro-
vision, if it is to be distinguished from that of the ‘norm’ that is ‘extracted’
from it?
In his brief conclusion, Barak notes that ‘constitutional implication is an
accepted phenomenon in constitutional law’.53 Nevertheless, this seems like a
missed opportunity to clarify an important point. Reasoning from implication
is not really a natural or social phenomenon. It is a judicial decision or practice
that may or may not be illegitimate. A constitutional theory should really set out
the reasons why it may be legitimate. Critics of constitutional courts will surely
find it insufficient as a justification that it happens a great deal. The challenge
from originalism will be an important one here because the very distinction
between express and implied terms invites a hierarchical relationship between
them. Originalists will say that if we can tell what is an ‘express term’ and what is
an ‘implied term’ (a distinction that some interpretivists reject), then only those
identified as ‘express terms’ of a constitution should enjoy full constitutional
authority.
The same issues are addressed in a very different way by Jack Balkin in his
own contribution to the volume, ‘The Framework Model and Constitutional
Interpretation’. Balkin is the author of a theory of constitutional law according
to which the constitution is merely a framework that ‘makes politics possi-
ble’.54 In this essay Balkin distinguishes between the ‘text’ of the constitution
and the ‘constitution in practice’, which is ‘open-ended’ and open to interpre-
tation.55 In Balkin’s argument, the text recedes into the background and plays
a very small part in interpretation. He argues that because ‘constitutional con-
struction is always ongoing, the constitution-in-practice is always changing’.56
All the various institutions participate in the re-writing of the constitution,
so that
in the framework model, constituent power continues throughout the life of a

constitution; it is exercised through all the modes and methods of politics and legal
argument that result in constitutional constructions.57
Indeed, Balkin’s theory of the ‘framework model’ makes constitutional law

mainly a descriptive category. He notes that in any case no constitutional theory
‘constrains’ judges, since ‘constraints come from many different features of the
constitutional and political system’, for example ‘social, cultural, institutional

53 ibid, 72.
54 See, J. M. Balkin, Living Originalism (Cambridge, Mass: Harvard University Press, 2011) 21-23.
56 ibid, 242.
57 ibid, 245.

164 (2018) 81(1) MLR 154–178

and political constraints’.58 The essay gives many examples of these influences
as well as the ‘modalities’ of constitutional argument.59 Balkin explains that
when we view constitutional interpretation as a social process rather than as isolated

acts of opinion-writing by individual judges, we recognize mechanisms of social
influence that produce the felt sense of where the law is and must go.60
This may well be so, but then what Balkin has in mind as ‘constitutional
interpretation’ is not what most lawyers have in mind. He gives us a detailed
analysis of various attitudes to the constitution, not the one that is the most
appropriate to adopt as a lawyer. The theory is more of a social theory of the
constitution, and not a legal one.
Most constitutional lawyers and indeed most of the other authors in the vol-
ume seem to believe, however, that law has its own method that provides better
and worse answers in legal reasoning. Balkin’s use of the term ‘interpretation’
is somewhat idiosyncratic, in that it refers to every possible social attitude to
the constitution, not the disciplined argument of the trained lawyer. This de-
scriptive focus of Balkin’s gaze brings him close to the ‘legal realist’ theorists of
the twentieth century, something which becomes evident when he compares
his views to Dworkin’s.61 Balkin rejects law as integrity and proposes instead
that under the ‘framework model’ judges should not only look for principle
but also for ‘compromise, strategic thinking, political accommodation or judg-
ments of policy’.62 This may be wise, but then what is the relationship of such
pragmatic considerations to matters of principle, such as liberty and equality?
Is an unprincipled judge always a better judge than the one who is constrained
by abstract principle? A good realist lawyer will only answer: ‘It depends’. But
then the question inevitably arises: ‘On what’?
CONSTITUTIONAL AUTHORITY
Hamilton’s dilemma has many guises. In his very rich and thoughtful essay,
‘Constitutional Legitimacy Unbound’, Evan Fox-Decent returns to the themes
of his recent book Sovereignty’s Promise: The State as Fiduciary in order to address
the dilemma between power and principle in constitutional law.63 Fox-Decent
borrows the idea of ‘fiduciary obligations’ from private law and the law of
trusts. A fiduciary relationship exists where one party, the fiduciary, is under
a duty to exercise some discretion or power on behalf of another party, the
beneficiary, only for the beneficiary’s best interests and not his own.64 This is the
relationship, Fox-Decent argues, that best characterises the sovereign-subject
relationship.
58 ibid, 247.
59 ibid, 260-261.
60 ibid, 250.
61 ibid, 256-259.
62 ibid, 259.
63 E. Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford: OUP, 2011).
64 See for example P. Birks, ‘The Content of Fiduciary Obligation’ (2000) 34 Israel Law Review 3.

(2018) 81(1) MLR 154–178 165

Here he applies the theory to international legal relations. He argues that

the state ‘is a fiduciary of everyone subject to its public powers, including those
individuals at the border’.65 Fox-Decent thus solves Hamilton’s dilemma by
falling entirely on the ‘principles’ side. There are indeed principles of justice
that determine the nature of the state and the constitution and these principles
create enforceable legal duties. This, however, comes at great cost, because
the principles of private law leave little room for an institutional account
of collective decision-making. In private law the beneficiary’s interests are
prudential and not morally controversial, since having more money is almost
always better than less. In public law they are morally controversial, however,
and involve many trade-offs. This is why in constitutional law the general
interest is shaped through a democratic contest, through the separation of
powers. The point of the institutional architecture of constitutional law is to
accommodate the collective support of rival accounts of the common good in
circumstances of equal citizenship. It is therefore very difficult to imagine what
fiduciary duties entail for the legislature and the executive. In public law we do
not have an uncontroversial account of the common good that any beneficiary
is supposed to receive.
Fox-Decent proceeds, however, to use the idea of fiduciary obligations to
explain ‘cosmopolitan’ obligations of each state to those outside it. And here he
is on much more certain ground. Because the relationship between states and
outsiders can much more naturally be put in terms of a voluntary interaction,
in the way of a private law relationship, the analogy works in a different
way.66 Fox-Decent outlines principles of ‘cosmopolitan legality’ according to
which all states are ‘trustees of humanity’ so that they may be entitled to
coercively bar peaceful outsiders from entering their territory only if they
supply ‘a compelling justification for doing so’.67 When Fox-Decent draws
some conclusions for constitutional legitimacy, he argues that the state is under
a duty to uphold a regime of secure and equal freedom under the law, as well
as to support the authority of international law. The arguments offered here
for such ‘cosmopolitan obligations’ are both subtle and powerful.
Hans Lindahl takes a very different turn, since he probably sides with the
‘authorisation’ side of Hamilton’s dilemma. In his essay ‘Constituent Power and
the Constitution’ Lindahl gives an analysis of ‘constituent power’ as collective
agency, whereby ‘a manifold of individuals jointly establish the rules by which
they are to govern themselves into the future: the constitution’.68 Lindahl
draws attention, however, to the ‘paradox of constituent power’, the fact that
a lawful creation of a constitution requires a law to operate under. So he
says: ‘constituent power can only originate a collective [agent or body] if it
succeeds in representing itself as a constituted power that represents the original
community, the community we already are, prior to the representational act’.69
66 For a very powerful argument that relationships of global justice are best put in terms of corrective
justice, which she calls ‘global commutative justice’ and not in terms of distributive justice see
T. C. de Campos, The Global Health Crisis: Ethical Responsibilities (Cambridge: CUP, 2017) 127.
68 ibid, 141.
69 ibid, 150.

166 (2018) 81(1) MLR 154–178

Lindahl speaks of ‘representation’ here but I think he means here something

like ‘legal construction’ or legal ‘valid representation’. He uses the example
of the founding treaty of the European Union which, paradoxically, sets up a
union of states, which will be an ‘ever closer union’, by presupposing that such
a union already exists.70
This is a wonderful example, because the apparent paradox occurs in the very
same sentence of the Treaty’s preamble. But Lindahl makes a more general point
here and argues that if a constitution is what creates ‘authoritative collective
action’ then such action must be presupposed if the constitution is to be made in
the first place. This argument is actually very close to that made by Dyzenhaus
and Walters against the more or less causal accounts of the constitution by
Hart and Kelsen, although here ‘constituent power’ is taken to be not a cause
of an event, but the power to make law. But Lindahl takes the argument in
a very different direction. He does not believe that ‘contractarian’ theories
can solve the riddle of legal authority. Lindahl believes that legal authority
cannot escape being anything more than ‘domination’, given that what counts
as the original ‘collective action’ of constituent power can never be legally
regulated.71
Lindahl thus suggests that Carl Schmitt’s analysis of rule and exception may
provide a more successful answer in that it explains how the constitution relies
on the exceptional and the unintelligible. Lindahl states that collective agency
is capable of ‘collective self-restraint’ in which ‘the suspension or perhaps
even the violation of a constitutional order is oriented to sustaining, rather than
destroying, what radically contests the legal collective’.72 Although I am not sure
I grasp fully what Lindahl is trying to say here, it is evident that his account of
constitution-making as ‘collective agency’ that is both active and self-denying,
follows from the Hart and Kelsen storybook of law as an authorisation order
or structure. It is rather unfortunate that in the context of this book Lindahl’s
challenge to ‘contractarian’ theories does not directly address the idea of law
as an interpretive judgment, such as we see in Dyzenhaus and Walters. For,
if law is such a judgment, then there is no paradox of constituent power. As
Walters explained in his chapter, no such power needs to exist for law to
exist.
CONSTITUTIONAL FUNDAMENTALS
Other essays in the book address important theoretical issues in constitutional

law. Rosalind Dixon and Adrienne Stone, in an essay called ‘Constitutional
Amendment and Political Constitutionalism’ offer an interesting response to
Waldron’s ‘political constitutionalism’, with the argument that constitutional
amendments are always available to ‘correct’ a judicial interpretation that a
majority finds wrong. It follows that judicial review is not the last word on
the interpretation of rights, and Waldron should not argue against it on such a
70 ibid, 149.
71 ibid, 156.
72 ibid, 158.

(2018) 81(1) MLR 154–178 167

ground. Judicial pronouncements must be seen as part of a process of dialogue,

not final conclusions.
Trevor Allan’s essay, titled ‘The Rule of Law’, restates his well-known views
on the common law constitution73 and touches again on liberty, equality, the
separation of powers and sovereignty. It can be usefully read as a response
to Dyzenhaus’ plea for a morally rich Staatslehre. Allan’s argument is a self-
consciously Kantian reading of constitutional law, according to which ‘the
principle of the rule of law can be fully understood only in connection with a
certain view of the related ideals of human dignity and individual liberty’.74
Aileen Kavanagh’s essay on the separation of powers, ‘The Constitutional
Separation of Powers’ provides a novel critique of the hypothetical ‘pure’
separation of powers. Kavanagh traces the logic of the separation of powers not
in the ‘dispersal’ of power, but in the political need for setting up ‘a deliberative
and representative body’ as our legislative assembly and distinguishing it from
both the independent body resolving disputes and the executive.75 The division
of powers is thus rule-based and focused on living under the rule of law, which
Kavanagh terms ‘living together in a joint enterprise’.76
Cristina Lafont’s ‘Philosophical Foundations of Judicial Review’ opposes
the familiar argument that the review of constitutionality of statutes com-
promises democracy. She argues that such a review promotes the value of
democracy. She distinguishes between a ‘juricentric’ and a ‘holistic’ perspec-
tive on the debate. She argues that the legal process organises and shapes
disagreements in such a way that they become far more accessible and intel-
ligible to the ordinary citizen.77 The process guarantees what Lafont calls the
‘communicative minimum’, or the power to make themselves heard. She then
concludes that having such a ‘forum of principle’ is essential for a democratic
culture.78
DIMENSIONS OF DIGNITY
Jacob Weinrib’s impressive book Dimensions of Dignity: The Theory and Practice
of Modern Constitutional Law, offers a theory of constitutional law that also seeks
to respond to Dyzenhaus’ plea for a richer constitutional theory.79 Weinrib
takes his inspiration from Kant and defends what he calls the ‘unified’ theory of
73 T. R. S. Allan, The Sovereignty of Law (Oxford: OUP, 2015).

75 ibid, 230.
76 ibid, 234-237.
77 ibid, 273.
78 ibid, 301. Other essays address particular issues of constitutional law from a theoretical standpoint.
Sophia Moreau writes about ‘Equality Rights and Stereotypes’ and argues that discrimination is
wrong because it involves ‘deprivations of certain important freedoms that persons are entitled
to have’. The book also includes excellent essays by Richard Stacey on popular sovereignty, by
Tom Poole on ‘reason of state’ and by Malcolm Thorburn on proportionality, on which for
reasons of space nothing more can be said here.
79 J. Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge:
CUP, 2016) (Dimensions of Dignity). It is not a coincidence that these two books address the same
concerns. Weinrib was a student of David Dyzenhaus and Arthur Ripstein at the University of
Toronto.

168 (2018) 81(1) MLR 154–178

constitutional law, a moral theory based on the abstract principle of the equal
dignity of all human beings. He says:
The purpose of this book is to formulate a general theory of public law that
not only captures the distinctiveness of modern constitutional practice, but also
delineates the obligation of all states to bring themselves within its parameters.
The animating idea of this theory is human dignity, conceived in terms of the
right of each person to equal freedom. By systematically unpacking the normative,
institutional, and doctrinal ramifications of this simple idea for the public law
relationship between rulers and ruled, a theory illuminating constitutional practice
materializes.80
Weinrib’s book is not merely an abstract philosophical discussion of the basic

principles of law, though. He discusses the abstract moral principles of consti-
tutional law as they emerge from actual practice. Indeed, the book is full of
very helpful discussions of various constitutions around the world, of important
legal doctrine and cases from Weinrib’s native Canada, but also from the United
Kingdom, Australia, the United States, Israel, India and Germany.
The key to Weinrib’s argument is a distinction between two parallel moral
principles. The first is a principle of ‘authority’ and the second a principle of
‘justice’. The principle of authority concerns the right of a ‘government’ to
rule, or to ‘exercise public authority over its members’ for the sake of dignity.81
Weinrib describes it as the fact that:
Private persons must submit to a publicly authoritative legislative institution that

possesses a right that all private persons lack – the right to enact a common set of
general norms that bind private persons in their conduct.82
Publicly authoritative institutions create a duty to obey merely from the fact
that they are necessary for each man’s independence from all others:
The public institutions of a legal system create the conditions in which each
person can enjoy his or her right to independence in relation to every other.
Because interacting with others in a condition of public law is compatible with the
right of every person to independence - and interacting in a lawless condition is
incompatible with the independence of anyone - every person must interact with
all others in a condition of public law.83
From this argument it follows that one is not to act according to their own
views about what ought to be obligatory, since this would have ‘anarchic’
consequences and is incompatible with the notion of ‘government’.84
The principle of justice takes effect once we take the existence of publicly
authoritative institutions as given. The fact that a government has a ‘right to
80 ibid, 3.
81 ibid, 51.
82 ibid, 49.
83 ibid, 51.
84 ibid, 56.

(2018) 81(1) MLR 154–178 169

enact, interpret, and enforce legal obligations that bind private persons’ provides
an underlying structure for the principle of justice.85 This principle
traverses the public law relationship from the opposite direction by relating
the right of every person to just governance to the corresponding duty of the
government . . . Every private person has a right to independence – that is, to
formulate his or her own purposes and pursue them with his or her own means –
subject to the systematic constraint that each person respects the same right of all
others.86
So while the principle of authority addresses the problem of the inequality of

power between persons in a state of nature, the principle of justice addresses
the duties of government, once institutions of government are created. The
principle requires that government direct its energies toward bringing the legal
order as a whole as far as possible in conformity with the independence of each
citizen.
Both principles are based on Kant’s idea for the need of ‘public right’
in a civil condition, in order to respect the ‘innate right of humanity’.87
Weinrib, however, organises them in a distinct and – to my mind – novel way
as ‘constitutive’ and ‘regulative’ principles of public authority’. The principle
of authority is ‘constitutive’ and not ‘regulative’. It means that the principle of
public authority does not set out every aspect of the moral success of public
authority. It does not, for example, specify whether it will be a democracy, an
autocracy or an aristocracy.88 Democracy is a requirement of justice, not a re-
quirement of authority in Weinrib’s scheme. It is true that democracy, Weinrib
says,
alone is capable of reconciling the independence of persons with legislative au-

thority, because it does not impose an arbitrary constraint on freedom by denying
persons the right to contribute to the laws by which they are bound.89
But democracy is not essential for authority to exist.

The distinction helps Weinrib respond to a well-known challenge to all
moral theories of law. H. L. A. Hart has said that any moral theory of law will
be ‘anarchic’ because it will require each citizen to establish the existence of
law only through an argument from moral principles he or she accepts.90 This
85 ibid, 57.
86 ibid, 58.
87 Kant outlines the innate right to freedom as: ‘Freedom (independence from being constrained
by another’s choice), insofar as it can coexist with the freedom of every other in accordance with
a universal law, is the only original right belonging to every man by virtue of his humanity’;
I. Kant, Metaphysics of Morals in Practical Philosophy (Cambridge: CUP, A. Wood (ed), 1996),
MM, 6:238. Weinrib explicitly refers to the Kantian argument as restated by A. Ripstein, Force
and Freedom (Cambridge, Mass: Harvard University Press, 2009) 145-181.
88 Dimensions of Dignity n 79 above, 59.
89 ibid, 60.
90 See H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law
Review 593, 598. Hart says: ‘There are therefore two dangers between which insistence on this
distinction will help us to steer: the danger that law and its authority may be dissolved in man’s

170 (2018) 81(1) MLR 154–178

means that moral theories deny us the benefits of a determinate legal order
and are certain to bring about indeterminacy and strife. If the content of the
law varies according to one’s moral convictions, then no shared law can be
available. Weinrib responds to Hart’s challenge by claiming that the anarchism
charge is correct, only when law depends on principles of justice but not when
it depends on principles of authority. The former determine when law is just,
while the latter determine when it exists. Weinrib draws a distinction between
‘constitutive’ and ‘regulative’ principles. He says that the constitutive dimension
concerns what it means for a norm or condition to be lawful. The regulative
dimension, by contrast, concerns what it means for a law or legal system to be
adequate or just.
It follows that under Weinrib’s ‘unified’ theory, if a public institution fails
to satisfy the principle of justice it does not lose its authority. Public authority,
he says, depends on a distinct principle, which as a ‘constitutive principle’
determines the existence of an institution and not its success. If law exists, then
it is subject to a separate principle of justice, which operates as the ‘regulative
principle’. Under the ‘unified’ theory, authority is thus a separate question
from justice. Hence:
when individuals adopt the standpoint of justice and criticize the adequacy of the
legal order or a publicly authoritative arrangement within it, neither the authority
of the legal order nor the binding character of its laws is called into question.91
Weinrib uses this distinction to draw another contrast between two different
pathologies of a legal order. Using Kantian terminology, he describes the failure
of a legal order to have authority as a state of ‘barbarism’.92 By contrast, an
‘unjust legal condition’ satisfies the principle of authority but fails to satisfy the
principle of justice. It follows that under his ‘unified’ theory, law is a moral idea
but accepts that law can exist even when it fails to meet all the tests of morality:
unjust law can indeed be law. After drawing these distinctions, Weinrib applies
the unified theory to the test case of Nazi law.
He starts with a discussion of Radbruch’s argument about ‘statutory lawless-
ness’ in Nazi law (as well as Robert Alexy’s endorsement of it).93 Radbruch
conceptions of what law ought to be and the danger that the existing law may supplant morality
as a final test of conduct and so escape criticism.’
91 Dimensions of Dignity n 79 above, 66-67.
92 ibid, 64.
93 A minor correction is in order here. Weinrib’s account of the case that gave rise to Radbruch’s
reflections is wrongly set out in the book. The case did not arise when a Jewish lawyer ‘returned to
Germany’ in order to reclaim his German nationality, which he had lost escaping to Amsterdam,
under Nazi immigration laws, as Weinrib says. If this had been the case, the lawyer would have
been entitled to reclaim his citizenship under Article 116(2) of the German Basic Law. Instead,
the case arose when the lawyer’s descendants sought to inherit from him (assuming he had died
by 1945 at the latest), but found that they could not, since he had supposedly lost his German
nationality before dying in a concentration camp. Famously, the German constitutional court
ruled that the Nazi law of citizenship did not develop any effects at all. The lawyer had never
lost his German citizenship (the judgment, of course, makes the rationale of Article 116(2) hard
to explain, but this did not stop the court making it). See Decision of the Second Senate of
14 February 1968, 2 BvR 557/62, BVerfGE 23.

(2018) 81(1) MLR 154–178 171

had said that a public enactment ceases to have the features of law only when it
reaches an ‘intolerable level’ of injustice.94 Weinrib rejects Radbruch’s view on
the ground that as well as condemning Nazism it must surely condemn many
other legal orders, since most, if not all, are guilty of some intolerable injus-
tice.95 By turning validity into an issue of justice, Radbruch either has to deny
the validity of a wide range of uncontroversial though unjust legal instances or
he will have to affirm that some legal injustices are not only lawful but also
just.96 In effect, Radbruch is wide open to Hart’s challenge of ‘anarchism’.
These problems are avoided, Weinrib says, only if we draw the distinction
that he proposes between ‘authority’ as the constitutive principle and ‘justice’
as the regulative one, since only the apparent legal orders that fail the tests of
the constitutive principle of authority fail to be law. This was the case of Nazi
law, but is not the case of current German law, whatever its many failures or
injustices.
Weinrib’s argument then proceeds to give a short account of the principle of
justice, where he contrasts his own Kantian approach to that of Rawls, whom
he criticises for focusing only on ‘liberal’ societies and their presuppositions.
He then turns his attention to the paradigm case of the ‘modern constitutional
state’, which he takes to be the state where there is full constitutional review
of all executive and legislative authority by the judiciary, and therefore finds
the United Kingdom ‘common law’ model defective because it does not make
public authorities truly ‘accountable’ to their citizens. He proceeds to an analysis
of constituent power and ‘eternity clauses’ which derives from his account of
authority: constituent power is real, if the constitutive principle is satisfied,
irrespective of the regulative principle of justice. Weinrib says:
from the standpoint of the unified theory, the people do not create the legal order.
Rather, the legal order creates the people by subjecting a plurality of individuals to
common legislative, executive, and adjudicative institutions.97
He also argues that ‘eternity clauses’ that limit the kind of amendments that
may be proposed to a constitution cannot be understood as manifestations of
some kind of prior ‘constituent power’, but only as moral constraints derived
from principles of justice. He ends the book with a detailed defence of the
‘moral structure’ of the doctrine of proportionality. There are very many rich
arguments throughout these chapters, that merit close attention, but I do not
have the space to say more here.
AUTHORITY AND JUSTICE
Instead, I will return to the foundational and intriguing distinction that Weinrib
makes between ‘authority’ and ‘justice’, as ‘constitutive’ and ‘regulative’ prin-
ciples. Notice that the distinction tracks Hamilton’s dilemma, as it contrasts
94 ibid, 79.
95 ibid, 82.
96 ibid, 85.

172 (2018) 81(1) MLR 154–178

law as a hierarchical order of authorisation (principle of authority) to law as

an order of principle (principle of justice), including an account of liberty and
equality. The distinction also follows the contrast between the ‘rule of recog-
nition’ which in some way ‘causes’ law to begin, and the interpretive ‘circular’
theories of law identified by Dyzenhaus and Walters. Weinrib’s argument is
novel, however. It is the key to many of the arguments he develops later in
the book. It is also the central response that Weinrib gives to legal positivism
and the challenge of instability. Whether Weinrib’s ‘unified theory’ of public
law can survive the legal positivist critique, will depend on the strength of this
distinction.
What exactly is the distinction about? I do not think that the book, in spite
of the clarity and elegance of its expression and its systematic structure, makes it
entirely clear. I will seek to reconstruct it here by following some simple steps,
hoping that this reconstruction will not distort the argument.98 The distinction
between authority and justice in Weinrib’s argument is best explained, I believe,
if one begins from the concept of justice. ‘Public justice’ for Weinrib is a rather
narrow if demanding idea. It does not involve, for example, those distributive
aspects that Rawls classifies under the second principle of justice. For Weinrib,
justice concerns equality and mutual independence among citizens in a narrow
sense:
The idea of public justice is a system of law in which each particular feature of the
legal order is directed toward the realization of the internal aim of the whole, the
equal freedom of persons under law.99
Weinrib distinguishes the ‘ideal’ of public justice, which is a ‘legal system

that fully conforms to the terms of its justification’, from the ‘duty’ of public
justice, which is the flexible and ever changing requirement that given our
circumstances we exercise public authority toward ‘bringing the legal order as
a whole into the deepest possible conformity with its own internal ideal’.100
This idea of a flexible duty to consider the ideal and bring it about, so far
as possible, is a very fertile one, because it explains how justice is ‘regulative’
even when it seems a remote possibility. It guides every action we take seeking
to approximate the idea, irrespective of where we start from. So the ‘duty
of justice’, Weinrib says, is ‘unremitting and transformative’101 By acting in
conformity with this duty, public authority brings society into accord ‘with
the demands of public justice’.
98 Although Weinrib does not refer to it in the book and makes no use of it, the contrast between
‘constitutive’ and ‘regulative’ principles appears in Kant’s epistemology. See I. Kant, Critique of
Pure Reason translated and edited by P. Guyer and A. Wood (Cambridge: CUP, 1997) A 179/B
221 to A 180/B 223, 297-298. While regulative principles are guided by ideas of reason, such
as the principle of ‘systematic unity within an ideal complete science of nature’, constitutive
principles are derived from the concepts or categories of ‘pure understanding’ such as ‘the
principles of substance, causality, and community’; see M. Friedman, ‘Philosophy of Natural
Science’ in P. Guyer (ed), The Cambridge Companion to Kant and Modern Philosophy (Cambridge:
CUP, 2006) 326.
100 ibid, 123.
101 ibid, 125.

(2018) 81(1) MLR 154–178 173

However, for Weinrib’s distinction between ‘justice’ and ‘authority’ to work,

the principle of authority must not cover the same ground as justice. If it did,
it would be indistinguishable from justice, since the principle of authority too
is about the interaction of persons as free and equal. Both principles derive
from human ‘dignity’, so they may end up requiring the same actions. Weinrib
suggests that authority responds to a different problem, that ‘in the absence of
public institutions, the right of each person to interact with every other on
terms of equal freedom remains subject to the arbitrary power of others’.102
Weinrib says that the solution to the problem is the ‘submission of private
persons to a system of publicly authoritative institutions that establish, interpret,
and enforce private rights’.103 Weinrib presents this as a ‘horizontal’ problem,
which once it is resolved creates the ‘vertical’ problem of the content of the
exercise of public authority. Weinrib insists that the principle of authority is not
a principle of justice and he contrasts it, for example, to Rawls’ principles.104
He presents authority merely as a something that determines what a ‘legal
system is’ and ‘enables a legal system to be distinguished from other entities
within and beyond the juridical world’.105 Nevertheless, it is hard to see how
this distinction can be made to work.
First, Weinrib does not explain what kind of problem the ‘horizontal’ prob-
lem really is or what kind of answer the principle of authority provides. If it is
an ethical question, about how one should act, it must have an ethical solution.
Some kind of ethical argument will address our concerns. If it is a semantic
question about the meaning of ‘law’, then no moral argument is needed at
all and instead we need a better grasp of language. Weinrib’s discussion of the
question of authority is in fact ambiguous between the two and the ambiguity
infects further parts of his argument.106 If there is a ‘duty of justice’ in any
public authority, to the effect that it should improve the conditions of equal-
ity for all citizens all the time, then such a duty may come to compete with
a given piece of legislation or even some constitutional provision. So justice
may compete with authority. Remember that in Dworkin’s theory legislation
and constitutions, however flawed, do create an obligation of fidelity, which
Dworkin has tried to capture with the ideas of ‘integrity’ and ‘fit’. In Weinrib’s
account, the duty of fidelity is cast adrift, because only justice is a ‘regulative’
ideal and authority is not. We are not told how or if authority creates any
moral duties, but if it does not, we are back to the problem of ‘anarchism’.
The same dignity or independence of equal persons that may be compromised
by ‘horizontal’ injustices can also be threatened by ‘vertical ones’. The same
independence and dignity are at stake in Weinrib’s two stages.
102 ibid, 59.

103 ibid, 59.
104 ibid, 63.
105 ibid, 61.
106 He notes in a footnote that he follows Dieter Grimm’s characterisation of an existing constitution
as ‘a set of legal norms’, rather than a philosophical construct’ and that ‘the norms emanate from
a political decision rather than some pre-established truth’, Dimensions of Dignity n 79 above,
212, footnote 125. Kant’s point is, I believe, that laws derive from both political decisions and
philosophical truths: whether an action is successful as an act of law-making is an exercise in
moral judgment.

174 (2018) 81(1) MLR 154–178

Second, it is very hard to see how relations of authority are only ‘vertical’,
as Weinrib presents them. By legislating, by making executive decisions and
by deciding disputes, public authorities intervene with binding decisions in
social life and determine the fate of individuals. They change their mutual
relations by determining who is right and who is wrong in the eyes of the
law. Everything they do in their ‘vertical’ capacity, has an immediate horizontal
effect. In fact, the two are indistinguishable. A prison sentence for a criminal
is the vindication of his victim. Planning permission for a developer is a defeat
for the objector. A license for late night-entertainments for a bar is a blow to
its competitors. And so on.
This is precisely why the absence of public authority results in ‘barbarism’.
It leads immediately to the domination of one person by another, or the
oppression of a group by another. When he discusses Nazism, Weinrib actually
highlights the horizontal dimension of authority very effectively and with
wonderful historical detail. He shows how the German legal system descended
into ‘barbarism’ by treating some of its own people with no regard to their
dignity and independence, thus creating or permitting the – horizontal –
violation of the dignity of some people by others. He says that
it is difficult to conceive of a public culture in which persons would understand

the extinguishment of their capacity for rights, the imputation of wrongs that bear
no relation to their conduct, and ultimately their own systematic extermination as
a way of securing their freedom from the arbitrary power of others.107
This elegant passage shows that the requirements of authority are indistinguish-
able from those of justice. They both refer to the relations among human beings
as free and equal persons. Authority and justice are the same principle looked
at from two different standpoints.
I believe that Kant’s argument is rather different to that offered by Weinrib.
In my view, Kant does not seek to insulate authority from ethical reasoning.108
Instead, he sees the creation of political institutions as a response to the night-
marish condition that we find ourselves in in a state of nature: that we are
unable to act ethically at all. In the state of nature, we are aware through the
free use of our reason of the rights and duties that our actions give rise to, for
example rights to property, under contract or status. Nevertheless, we are also
aware of the fact that it is impossible to act in conformity to them. Kant says
that the elementary understanding of a right to private property for free and
equal persons claims for it universal scope and reciprocity:
I am therefore not under obligation to leave external objects belonging to others

untouched unless everyone else provides me assurance that he will behave in
accordance with the same principle with regard to what is mine.109

108 Here I follow the reading of Kant’s argument for the ‘civil condition’, which I outlined in
P. Eleftheriadis, Legal Rights (Oxford: OUP, 2008) 51-56.
109 I. Kant, ‘The Metaphysics of Morals’ in I. Kant, Practical Philosophy M. J. Gregor and A. Wood
(eds), The Cambridge Edition of the Works of Immanuel Kant (Cambridge: CUP, 1996) 409.

(2018) 81(1) MLR 154–178 175

The structure of human interaction demands reciprocity, but such reciprocity

cannot arise through any unilateral action. In a world without public right, all
our possible options are wrongful: either we submit to the unilateral will of
others, or they submit to ours. Allowing this state of affairs to carry on would
be an act of the greatest disregard to human dignity. Hence our natural duty of
justice to enter a ‘civil condition’.
Authority is a response to this ethical problem. We create the institutions of
public authority not in order to benefit or avoid the nastiness of violence (as
Hobbes thought) but in order to make the ethical interaction between fellow
human beings possible. Kant describes how property becomes possible through
public right in the following way:
By my unilateral choice I cannot bind another to refrain from using a thing, an

obligation he would not otherwise have; hence I can do this only through the
united choice of all who possess in common. Otherwise I would have to think of a
right to a thing as if the thing had an obligation to me, from which my right against
every other possessor of it is then derived; and this is an absurd way of representing
it.110
So the need to act in a way that brings about a civil condition, or does not
undermine its continued existence, where it already exists, is a prior ethical duty.
I act wrongly if I do not make it my own first priority. So authority for Kant
is not a matter distinct from a duty of justice, but a matter of priority within
the domain of justice. In this way the distinction between ‘constitutive’ and
‘regulative’ principles of public institutions, even if true, plays no part at all in
our understanding of our obligations.
Does such a directly ethical and, in my view at least, original Kantian
argument answer Hart’s criticism of moral theories of law? No, it does not,
not by itself. As Weinrib has already shown, Hart is right to point out that any
directly moral theory has the potential of becoming ‘anarchic’. As I interpret
it, Kant’s theory is anarchic in precisely the way Hart describes. If the relevant
ethical tests that the theory identifies for authority are not satisfied, then there
can be no civil condition and no law. And the tests are all subject to one’s
practical reasoning alone. Kant’s theory is ‘anarchic’ in exactly the same way
Dworkin’s theory is.111 Weinrib shows, in his discussion of Radbruch and
Alexy, that a direct test of morality or justice cannot be sufficient to explain
the distinctness of the authority of law. We need some kind of distinction,
even if we are not to endorse Hart’s legal positivism, so the need for drawing a
distinction between authority and justice is real.
One answer available to us is that offered by Kant, and which, unless I
misunderstand the distinction between ‘constitutive’ and ‘regulative’, is not
given much attention by Weinrib. The distinction is that between a priori and
a posteriori principles of practical reason. The distinction occurs in many parts
110 ibid, 413.

111 Dworkin, n 11 above, 410-412. So Dworkin concludes that under the edicts of an evil regime,
the ‘German judges asked to enforced them faced only prudential dilemmas, not moral ones’
(at 411).

176 (2018) 81(1) MLR 154–178

of his work, but most clearly in his essay ‘On the Common Saying: That May
be Correct in Theory but it is of No Use in Practice’, where Kant explains
how the happiness of citizens is not a ground for a constitution’s legitimacy.
If a certain law was detrimental to a people’s happiness, a people, for Kant,
would still have to obey it because its legitimacy depends only on the ‘laws of
right’. For Kant there can be no principle or standard of happiness in political
morality because happiness is always an impossible test:
. . . for both the circumstances of the times and the highly conflicting but always
changing illusion in which someone places his happiness (though no one can
prescribe to him in what he should place it) make any fixed principle impossible
and [happiness] in itself unfit to be a principle of legislation.112
For this reason, Kant explains, a government’s legitimacy does not depend on a
test of happiness or ‘preference satisfaction’ or – one may add – the principles of
social justice, as distinguished from constitutional essentials. Legitimacy depends
only on laws of right. Only on such ‘inalienable rights’ each citizen is to never
give up and ‘about which he is authorized to judge for himself’.113 Yet, even
though it is not the basis of a ‘principle’ happiness can still be an aim of
the ‘supreme power’ of a commonwealth, in its efforts to make the ‘rightful
condition’ secure.
So Kant seems to draw the same distinction we find in Rawls, between
‘constitutional essentials’ or laws of right, on the one hand, and further prin-
ciples about resources, risk and happiness, on the other, which Rawls calls the
‘difference principle’ or principles of distributive justice. A similar distinction is
drawn by Dworkin between ‘legitimate government’ and ‘justice’, as follows:
Governments may be legitimate, however – their citizens may have, in principle,

an obligation to obey their laws – even though they are not fully, or even largely,
just. They can be legitimate if their laws and policies can nevertheless reasonably be
interpreted as recognizing that the fate of each citizen is of equal importance and
that each has a responsibility to create his own life. A government can be legitimate,
that is, if it strives for its citizens’ full dignity even if it follows a defective conception
of what that requires.114
This is a distinction between legitimate authority and full justice which seems
to me to be only implicit in Weinrib’s book.115
It is therefore possible that a directly moral theory of constitutional law built
on the basis of the distinction between ‘constitutional justice’ and ‘social justice’
or ‘legitimacy’ and ‘justice’ may be capable of responding to Hart’s challenge.
Such a theory would give a fully moral account of public authority, as a truly
reason-giving institution, but one whose success does not rest on the complete
112 Kant, ‘On the Common Saying: That May be Correct in Theory but it is of No Use in Practice’
in Kant, n 109 above, 297.
113 ibid, 302.
114 Dworkin, n 11 above, 321-322.
115 For a powerful recent argument connecting dignity and the constitution along these lines see
now P. Sourlas, ‘Human Dignity and the Constitution’ (2016) 7 Jurisprudence 30.

(2018) 81(1) MLR 154–178 177

satisfaction of all the tests of social justice.116 Anarchy is thus always a possibility,
but only if the institutions of authority fail the tests of legitimacy. Under this
view, authority rests on principles of constitutional justice, which Kant calls
‘laws of right’, Rawls calls ‘constitutional essentials’ and Dworkin calls ‘political
legitimacy’.117 Weinribs does not reject these arguments in his book. They are
however, overshadowed by the very different argument he makes on the basis
of the ‘constitutive’ and ‘regulative’ principles of authority and justice.
CONCLUSION: THE MORAL READING OF CONSTITUTIONAL LAW
These two excellent books show how rich the debate over the theory of con-
stitutional law has become. The debate has no doubt been injected with energy
and purpose by international scholarship and the various comparative consti-
tutional law projects of the last few years that have shown that the questions of
constitutional law are truly universal, even if they arise in different contexts.118
The best constitutional scholarship now is now truly cosmopolitan in scope.
Its canon includes cases and arguments from Europe and North America but
also South Africa, South America, Israel, India and even further afield. The
two books under review also show that the erstwhile dominant orthodoxy
of the Kelsen – Hart analysis is gradually losing its influence. Constitutional
lawyers and theorists do not see constitutional law as a technical vessel, ready
to be filled with whatever content is provided for it by political leaders or by
partisan majorities. It is now understood – and expertly shown by Weinrib -
that constitutions that violate constitutional ideals are incoherent and unlawful,
so that more and more courts accept the once radical idea of ‘unconstitutional
constitutional amendments’, inexplicable perhaps under some versions of le-
gal positivism but mandatory under the moral reading of the constitution.119
What I called earlier ‘Hamilton’s dilemma’ is being answered both in theory, by
scholars, and in practice, by the courts. After the fruitless detours taken during
the legal positivist years, constitutional law seems to have returned to its rich
intellectual roots, as a vital reflection on human nature and its duties.
116 I gave an outline of such an argument in Legal Rights n 108 above and in P. Eleftheriadis, ‘Power
and Principle in Constitutional Law’ (2016) 45 Netherlands Journal of Legal Philosophy 37.
117 Dworkin, n 11 above, 321-323, 368-371, 410-412.
118 See, for example, three very impressive recent books: V. Jackson and M. Tushnett, Comparative
Constitutional Law (St Paul: West, 3rd ed, 2014), M. Rosenfeld and A. Sajo (eds), The Oxford
Handbook of Comparative Constitutional Law (Oxford: OUP, 2012) and T. Ginsburg and R. Dixon
(eds), Comparative Constitutional Law (Cheltenham: Elgar, 2011).
119 Dimensions of Dignity n 79 above, 184-205.

178 (2018) 81(1) MLR 154–178

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David Dyzenhaus and Malcolm Thorburn (eds), Philosophical Foundations

In the Federalist Papers Alexander Hamilton gives a robust defence of consti-

This independence of the judges is equally requisite to guard the Constitution

This awkward sentence merely records the dangers of constitution-making,

(2018) 81(1) MLR 154–178 155

DEFENDING CONSTITUTIONAL LAW

In Philosophical Foundations of Constitutional Law editors David Dyzenhaus and

9 D. Dyzenhaus and M. Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford:

156 (2018) 81(1) MLR 154–178

understanding of the constitution according to which the constitution is a legal

Reinterpreted in this way, Hart’s seemingly austere, and supposedly descriptive,

(2018) 81(1) MLR 154–178 157

the constitution is legal, that it should be confined to formal authorization rules of

158 (2018) 81(1) MLR 154–178

the debate about the question of constitutionality is reconceived as one to be

(2018) 81(1) MLR 154–178 159

is a discourse of reason in which existing rules, even those articulated in writing,

The interpretive or circular account of unwritten law is thus consistent with a

160 (2018) 81(1) MLR 154–178

is very powerful, because the intellectual development of law as a deliberative

unidirectional projection of authority that extends outward as comprehensive

The expression is elegant, but the argument is unnecessarily complex. If law

35 Philosophical Foundations n 9 above, 39.

(2018) 81(1) MLR 154–178 161

162 (2018) 81(1) MLR 154–178

45 Philosophical Foundations n 9 above, 52.

(2018) 81(1) MLR 154–178 163

in the framework model, constituent power continues throughout the life of a

Indeed, Balkin’s theory of the ‘framework model’ makes constitutional law

52 Philosophical Foundations n 9 above, 61.

164 (2018) 81(1) MLR 154–178

when we view constitutional interpretation as a social process rather than as isolated

(2018) 81(1) MLR 154–178 165

Here he applies the theory to international legal relations. He argues that

166 (2018) 81(1) MLR 154–178

Lindahl speaks of ‘representation’ here but I think he means here something

Other essays in the book address important theoretical issues in constitutional

(2018) 81(1) MLR 154–178 167

ground. Judicial pronouncements must be seen as part of a process of dialogue,

73 T. R. S. Allan, The Sovereignty of Law (Oxford: OUP, 2015).

168 (2018) 81(1) MLR 154–178

Weinrib’s book is not merely an abstract philosophical discussion of the basic

Private persons must submit to a publicly authoritative legislative institution that

(2018) 81(1) MLR 154–178 169

So while the principle of authority addresses the problem of the inequality of

alone is capable of reconciling the independence of persons with legislative au-

But democracy is not essential for authority to exist.

170 (2018) 81(1) MLR 154–178

(2018) 81(1) MLR 154–178 171

AUTHORITY AND JUSTICE

172 (2018) 81(1) MLR 154–178

law as a hierarchical order of authorisation (principle of authority) to law as

Weinrib distinguishes the ‘ideal’ of public justice, which is a ‘legal system

(2018) 81(1) MLR 154–178 173

However, for Weinrib’s distinction between ‘justice’ and ‘authority’ to work,

102 ibid, 59.

174 (2018) 81(1) MLR 154–178

it is difficult to conceive of a public culture in which persons would understand

I am therefore not under obligation to leave external objects belonging to others

107 Dimensions of Dignity n 79 above, 107.

(2018) 81(1) MLR 154–178 175