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The moral unity of public law

Accepted version
Peer-reviewed

Type

Article

Change log

Authors

Allan, TRS 

Abstract

jats:p Instead of a public law fragmented into discrete departments, we should envisage a unified scheme of constitutional rights and legal standards, expressing a coherent moral theory of the rule of law. That moral theory underpins all legitimate legal orders, properly respectful of human dignity; and common law adjudication is best understood as the working out, according to context, of the practical implications of the theory. An initial focus on more local legal tradition ultimately leads to a broader inquiry about the true demands of human rights and civil liberties, offering the prospect of a larger vision of democratic constitutionalism. While Jeremy Waldron has doubted the similarity between legal analysis and moral reasoning – rejecting an analogy with Rawlsian reflective equilibrium – his view may be contested. A common law judge who attempts to reason morally in the name of the whole society, in the manner suggested by Ronald Dworkin’s theory of integrity, must take account of those legal texts and precedents that political morality makes pertinent. Legal reasoning is simply moral reasoning, attentive to historical and political context. </jats:p>

Description

Keywords

common law adjudication, constitutional rights, rule of law, reflective equilibrium, moral reasoning

Journal Title

University of Toronto Law Journal

Conference Name

Journal ISSN

0042-0220
1710-1174

Volume Title

67

Publisher

University of Toronto Press Inc. (UTPress)