Published online by Cambridge University Press: 20 July 2015
Constitutional Goods offers an ambitious constitutional theory that challenges basic liberal ideas such as the priority of basic liberties and the inevitable disagreement between competing conceptions of the right and the good. The book has two objectives: it attempts to widen, on the one hand, the list of constitutional goods that deserve priority over other interests. On the other, it tries to bring competing conceptions of the right and the good together under an overarching umbrella defined as the 'inclusive conception'. This article attempts to show that, despite the valuable and ambitious effort, Constitutional Goodsis unlikely to convince everyone of its capacity for inclusiveness.
Many thanks to Stephen Perry, Michael Plaxton and Wojciech Sadurski for very helpful comments.
* (Oxford University Press, 2004) ISBN-10: 0-19-927466-5.
1. Besson, Samantha, The Morality of Conflict—Reasonable Disagreement and the Law (Oxford: Hart, 2005)Google Scholar.
2. See Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar.
3. Brudner distinguishes between ideal and sociological models (‘an abbreviated description of empirical reality’). His own model is meant to be ideal or archetypical, Constitutional Goods, supra note * at 1.
4. See Constitutional Goods, supra note * at viii.
5. To understand this notion, think of a dictionary. Any word that starts with A takes priority over any word that starts with B, C, D, etc., any word that starts with B takes priority over any word that starts with C, D, E, etc., and so on.
6. Sumner, L.W., ‘Mill’s Theory of Rights’ in West, H.R., ed., The Blackwell Guide to Mill’s Utilitarianism (Oxford: Blackwell, 2006) at 184–98 Google Scholar.
7. See chapter V of Utilitarianism and On Liberty in general.
8. See for instance Kamm, F.M., ‘Rights,’ in Coleman, & Shapiro, , eds., Oxford Handbook of Jurisprudence (Oxford: Oxford University Press, 2002)Google Scholar.
10. Supra note * at 56.
11. Ibid. at 62.
13. Dworkin, Ronald, Justice in Robes (Cambridge, MA: Harvard University Press, 2006) at ch. 4Google Scholar.
15. See Constitutional Goods, supra note * at 28.
16. See ibid. at 32.
17. Ibid. at 300.
18. See ibid. at 38.
19. See ibid. at 73.
20. Ibid. at 148.
21. See ibid. at 159.
22. See ibid. at 163.
23. Ibid. at 319.
24. I develop this point in my forthcoming book, Constitutional Dilemmas—Conflicts of Fundamental Legal Rights in Europe and the USA (Oxford: Oxford University Press, 2007)Google Scholar.
25. Constitutional Goods, supra note * at 319.
26. See ibid. at 353.
27. Ibid. at 439.
28. This is mainly a Rawlsian version of liberalism.
30. Brudner does consider some practical problems, such as abortion. However, discussion of practical issues does not abound.