Meaning and Belief in Constitutional Interpretation

The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution-espousing interpretation of constitutional concepts according to their contemporary understandings typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them-specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of the abstract concepts prevalent at the time of enactment, and not those we may now favor. My main purpose in this essay is to put some pressure on the linguistic considerations that are presented in this debate, arguing that they are much more problematic than the proponents of both positions assume. I will try to show that the debate here is actually a moral-political one, mostly about the main rationale of a constitutional regime and the conditions of its legitimacy. It is, primarily, a debate about what constitutions are for, and what makes them legitimate. But I will only get to this moral issue at the end. The main part of the essay will strive to show that the semantic considerations employed in this debate are inconclusive; the way concepts are used in a given context depends on various pragmatic determinants, and those, in turn, depend on the nature of the conversation in question. The moral disagreement is, ultimately, about the kind of conversation that constitutional regimes are taken to establish

Philosophy of Law: Reply to Critics

The author addresses issues raised by commentators on his book, Philosophy of Law (2011)

Do We Have a Right to Common Goods?

Individuals have rights. I will assume that this means that individuals have interests which are important enough to justify the imposition of duties on others in order to secure those interests. Groups of individuals, such as nations or ethnic minorities, plausibly have rights as well. Groups of individuals may have group interests appropriately protected by the imposition of duties on others, typically, on governments, or on other larger political entities. My concern in this essay is with the question of what individuals or groups may have a right to. In particular I want to explore the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. First, I will explain the concept of a common good and its distinction from other, similar, concepts such as collective and public goods. Second, I will argue that individuals should not have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual\u27s right is the right to a certain share in that common good. Finally, I will explore the question of how this analysis applies to group-rights

Legal Positivism: Still Descriptive and Morally Neutral

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations

Meaning and Belief in Constitutional Interpretation

The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution-espousing interpretation of constitutional concepts according to their contemporary understandings typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them-specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of the abstract concepts prevalent at the time of enactment, and not those we may now favor. My main purpose in this essay is to put some pressure on the linguistic considerations that are presented in this debate, arguing that they are much more problematic than the proponents of both positions assume. I will try to show that the debate here is actually a moral-political one, mostly about the main rationale of a constitutional regime and the conditions of its legitimacy. It is, primarily, a debate about what constitutions are for, and what makes them legitimate. But I will only get to this moral issue at the end. The main part of the essay will strive to show that the semantic considerations employed in this debate are inconclusive; the way concepts are used in a given context depends on various pragmatic determinants, and those, in turn, depend on the nature of the conversation in question. The moral disagreement is, ultimately, about the kind of conversation that constitutional regimes are taken to establish

Are Constitutions Legitimate?

Liberalism may not have won the global victory that some commentators predicted, but constitutionalism certainly has. The vast majority of countries in the world, democratic and non-democratic alike, have written constitutions that are designed to entrench the basic legal structure of their regime. Most constitutions also enumerate a list of rights and general principles that purport to have a higher legal standing than ordinary law, and most countries entrust the interpretation of their constitution to a court of law. I will not try to speculate here about why this is the case. My aim is to scrutinize the idea of constitutionalism from a moral point of view, arguing that constitutionalism does not quite deserve the celebration that it has occasioned. The argument proceeds as follows: after a preliminary outline of the main features of constitutionalism, I will present what I take to be the main moral concerns about its legitimacy. I will then consider a number of arguments that have been offered to answer those concerns, arguing that the arguments fail to meet the challenge. I will conclude with a few words about the moral implications of this failure and some suggestions for reform

Do We Have a Right to Common Goods?

Individuals have rights. I will assume that this means that individuals have interests which are important enough to justify the imposition of duties on others in order to secure those interests. Groups of individuals, such as nations or ethnic minorities, plausibly have rights as well. Groups of individuals may have group interests appropriately protected by the imposition of duties on others, typically, on governments, or on other larger political entities. My concern in this essay is with the question of what individuals or groups may have a right to. In particular I want to explore the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. First, I will explain the concept of a common good and its distinction from other, similar, concepts such as collective and public goods. Second, I will argue that individuals should not have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual\u27s right is the right to a certain share in that common good. Finally, I will explore the question of how this analysis applies to group-rights