The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitutional.

In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree constitutional interpretation. The only “living trees are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order.

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant.

In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

In this article, the author replies to critiques of his book, Constitutional Goods(Oxford, 2004) by Professors Trevor Allan, Clare Chambers, John Charvet, Philip Cook, Thomas Poole, and Lorenzo Zucca. These critiques were originally presented at a symposium held in May, 2008 at the London School of Economics and Political Science and were later published together in Vol. XXII (January, 2009) Canadian Journal of Law and Jurisprudence.

Does the fact that my actions cause someone to lack access to the objects of her human rights make me a human rights violator? Is behaving in such a way that we deprive someone of access to the objects of her human rights even when we could have avoided behaving in such a way, sufficient to maintain that we have violated her human rights? When an affluent country pursues domestic policies that will foreseeably cause massive deprivation abroad in order to improve its already prosperous economy, has this country violated the human rights of the very poor just by doing so? If international organizations such as the International Monetary Fund and the World Trade Organization pursue policies that lead to an increase in the global poverty rate, are such organizations human rights violators? Can an individual undertaking certain actions in the market place that render insecure the access of the worst-off to the objects of their human rights be blamed for violating their rights?In this article I discuss the thesis that claims that whenever we cause, or contribute to the cause of, someone else’s lack of access to the objects of her human rights, we are human rights violators. I contend that this thesis, which seems to underpin the arguments of many cosmopolitan authors taking part of the global justice debate, is mistaken. In order to achieve this end, I analyze several alternative formulations of the causal thesis. My conclusion is that before it can be said that an agent has violated someone else's human rights, it has to be proven that this agent has caused, or contributed to the cause of, a state of affairs where someone lacks access to the object of some of her human rights, by infringing a duty not to do so. Furthermore, I maintain that this must be a perfect, as opposed to an imperfect, duty.

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent‘. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions.

Imagine the following. You have been asked to critically evaluate the criminal process in your home jurisdiction. In particular, you have been asked to determine whether the criminal process currently in place appropriately balances the need to maximize the chances of getting things right—of acquitting the innocent and convicting the guilty—with the need to minimize the chances of getting things wrong—of acquitting the guilty and convicting the innocent. How would you proceed? What rules of evidence and procedure would you put in place? Would you exclude germane inculpatory evidence that has been obtained in violation of the accused’s constitutional rights? Would you permit spouses to testify against each other, or allow the jury to draw adverse inferences from an accused’s failure to testify on his or her behalf? These, in broad outlines, are the sorts of issues addressed by Larry Laudan in his superb Truth, Error, and Criminal Law.

This paper explores the following question: if, as John Rawls famously suggests, justice is the first virtue of social institutions, how are we to understand the institution of contract law? On the one hand, many writers take the view that the rules of contracts are merely a tool for bringing about distributive justice; on the other hand, some libertarian writers contend that the rules of contract leave no space for any idea of distributive justice. In this paper, I propose an alternative account. I situate contract law in terms of what John Rawls calls “the social division of responsibility”: society as a whole has to provide individuals with an adequate share of opportunities and resources that they need in order to set and pursue their own conception of the good. Once individuals have those fair shares, citizens have to take responsibility for how their own lives go. An important way that people may pursue their plans is by entering into arrangements with others. This requires a system of contract rules. I argue that justice requires that we understand contract rules in terms of the idea of fair terms of interaction – that is, terms that would be accepted by reasonable persons moved by a desire for a social world in which they, as free and equal, can cooperate with others on terms they accept. The underlying idea is that of reciprocity, that is, the idea that individuals should not set the terms of their interactions with others unilaterally. Those fair terms of interaction are reasonable terms. Thus, in this paper, I claim that contractual interactions should be approached from the perspective of the reasonable person. My aim is to explain the formation of a contract, the legal response to a breach, and other issues that come up with contractual interactions from that perspective.

Discussion in the paper focuses on instituting a requirement that juries in criminal cases make public the reasons for their verdicts. The nature of such a requirement is elaborated, as is the way in which defects in the reasons provided might serve as a basis for appealing convictions. Various arguments for adopting such a requirement are considered, as are objections to doing so. In support of the requirement, I contend that it would enable defendants in criminal cases to ensure that their procedural rights have been respected. Such a requirement can also be construed as a condition of the legitimacy of exercises of political power and as an implication of the right of each person to be treated with equal concern and respect. The main objections to such a requirement concern its possible interference with jury independence and the complications and inefficiencies appeals of reasoned verdicts would produce.

Constitutional Goods, a work of political theory presented as constitutional theory, foregrounds law. Law is central to its method. The dialogic (or inclusive) theory developed in the book is based, we are told, on ‘a unity of elements found in actual case law.’ Law provides, then, much of the raw material on the basis of which the three conceptions of liberalism (libertarian, egalitarian and communitarian) are identified. And court cases are vital to the process of ‘sifting’ through which aspects of each conception that are of enduring value are identified and synthesized within a final ‘inclusive conception’ of the liberal constitution. Law is also central substantively. It plays a role in the high moment of the theory—the mutual recognition of citizen and ethos—and permeates (and justifies) every mode of social and political interaction within the ideal political community that Constitutional Goods presents. State, community, and individual are wrapped up and enfolded within law (or, as Brudner prefers to style it, ‘the Law’) within the inclusive theory.

In this paper I focus on chapter 9 of Constitutional Goods, with its analysis of sex and family. In that chapter Alan Brudner uses the constitutional theory that he has developed throughout the book and applies it to two key issues of state regulation: sexual relationships and abortion. The arguments he uses with respect to both issues are novel, and the conclusion concerning abortion is particularly controversial. So there is much to say about those arguments, and discussion of them is the focus of the second half of the paper. But I start with some general remarks on Brudner’s project as a whole: the project of inclusivity. It is necessary to discuss the concept of inclusivity not only because it underpins the arguments of chapter 9. The idea of inclusivity is fundamental to Constitutional Goods as a whole, and in the first part of the paper I argue that this idea is problematic both conceptually and normatively.

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in the new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

This paper is concerned with certain connections and oppositions that Brudner perceives between liberty, equality and community. As I understand his project, he begins with a strong atomist conception of the worth of individuals, which he calls libertarian, and claims to show how egalitarian and communitarian ideas of individual worth are unavoidably contained in the original idea and must be developed out of it in order to arrive at a coherent and conceptually stable view. This is the inclusive conception, which retains the libertarian and egalitarian moments as subordinate but essential aspects of a liberal ethical community. This paper is sceptical of the validity of the proposed deduction. It concentrates on a few passages, which purport to show how an initial position has implications that nevertheless are in contradiction with the premises from which they are derived. As a result of this concentration, the paper, unavoidably, ignores a great wealth of illuminating material that, together with the impressive sweep of the project as a whole, fully justifies the attention the book is receiving, even if, as I believe, the overall argument does not succeed.

We are experiencing a transitional moment in international law. What once seemed to be an unstoppable evolution toward cosmopolitan constitutionalism now appears as a fragile and easily reversible trend, threatened both by the imperial disregard of international legality by recent U.S. administrations and by the disinterest or active opposition of a group of states that was classified as ‘uncivilized’ in nineteenth century international law. A powerful account of the differences between these states -- former colonies and satellites of great powers – and the predominantly western states whose publics take for granted human rights culture has captured the imagination of international elites. The contemporary account of the differences between western European-descended political communities and the ‘others’ focuses on democratic governance, human rights, and human security. One important element of this narrative is the emerging international legal concept of the ‘responsibility to protect,’ often promoted as a means of securing the preceding three goods. This paper considers the recommendations of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) concerning a subsidiary element of the responsibility to protect termed the ‘responsibility to prevent.’ It argues that the prescriptions associated with the responsibility to prevent rest upon a set of prevailing assumptions about the root causes of threats to human security that are not tenable or not proven, and which both rely upon and reinforce the dualistic narrative of lawful and outlaw states that now dominates international public policy-making in western countries. Further, it shows how the model of legalization of humanitarian intervention proposed by ICISS is susceptible to cooptation by the democracy promotion project frequently associated with the liberal peace thesis. Finally, the paper recommends that only a stripped-down version of the ICISS recommendations, limited to the ‘responsibility to react,’ should be legalized, primarily because of the current absence of a reasonable degree of intercultural agreement on a substantive grounding for a muscular interpretation of a responsibility to prevent that includes root cause prevention.

In this paper I consider the arguments for and against textualism, or the position that the meaning of a text can be ascertained solely by reference to the rules of grammar and the conventional meanings of the words used in the text. Textualism has a great deal of intuitive force and has been attractive to lawyers because it seems to advance the rule of law. Textualism promises to deliver accessible, objective, and clear meanings for legal texts, which in turn will achieve predictability, co- ordination, efficiency, and the constraint of state officials. My analysis concludes, however, that the arguments for the impossibility of textualism are convincing. What follows from this? Surprisingly little. Clear and compelling meanings for legal texts are still possible, as is the rule of law. Existing practices need to be redescribed— but not changed—as a result of textualism’s failure. Some of these redescriptions do upset the conventional self-understandings of lawyers (rewriting the law, for example, turns out to be a pervasive practice), but this does not matter much because practices and accounts of practices are independent things. Extensive changes made to one need not have effects on the other.

In Constitutional Goods, Alan Brudner seeks to articulate a novel conception of justice that will inform the content of the ideal liberal constitution. The content and justification of this conception ofjustice are the topics of this paper. The content of this novel conception ofjustice is constituted by what Brudner describes as an inclusive conception of liberalism, and its justification is grounded on an account of public reason that is presented in opposition to that of John Rawls. I argue that we should reject both the content and justification of Brudner’s conception ofjustice. Brudner is unable to construct an inclusive conception of liberalism from elements of libertarianism, egalitarianism, and communitarianism, and his account of public reason lacks the properties of fairness and reciprocity that differentiate a reasonable agreement from a modus vivendi. This paper therefore defends a Rawlsian political conception ofjustice and justification from Brudner’s criticisms and proposed alternatives.

International law on the protection and promotion of social and economic rights of the child binds states parties to respect, protect and secure these rights both in their own territories as well as to contribute to the programmes for such fulfilment in other countries in a strategy aiming at global implementation of these rights. This paper explores the legal basis for states‘ external obligations to support fulfilment of social and economic rights. It surveys inter alia the relevant treaty texts, explanatory resolutions of the UN General Assembly and statements in reports submitted by states parties to the UN monitoring committees, and argues that recent state practice and interpretation of human rights obligations confirms the extraterritorial obligations to support fulfilment of these rights. Since these are obligations to fulfil the rights of human beings in other countries rather than obligations to third states, they can be referred to as ‘diagonal obligations‘ to distinguish them from inter-state horizontal responsibility.

Alan Brudner’s closely-argued, richly-textured and wide-ranging work, Constitutional Goods, provides a striking and original account of the rule of law and its implications for legitimate government. Since the rule of law includes the enforcement of substantive principles ofjustice, it requires a clear separation of powers between court and legislature. The role of the court is chiefly confined to pure practical reason, determining what the public reason of the liberal consti-tution requires. It is the role of the legislative assembly to give its assent to governmental measures that apply the principles ofjustice to empirical circumstances, where the scope for reasonable disagreement provokes a transition from natural law to political judgment. Judicial review carries no anti-democratic implications because it defends the conceptual boundaries of popular decision-making: ‘Democracy is not defeated but protected if the court invalidates a law no free person could impose on himself, for the majority has no more authority to pass such a law than an autocrat nor any jurisdiction to decide by fiat a question to which there is a correct legal answer.’

This paper is about the place of religion in Alan Brudner’s Constitutional Goods. More generally, it offers some thoughts on the place of religion in constitutional theory and political philosophy today. This theologico-political question was central for many centuries, but gradually faded as our secular age affirmed itself. Recent political and social events at the European and at the global level have firmly turned the tide.

Rodriguez-Blanco examines Enrico Pattaro’s effort to explain the normativeness or binding force of the law. Pattaro defends the controversial claim that norms are motives of behaviour and provides a rich explanation of how these motives, i.e., beliefs in the human brain, move human agency. In her review, Rodriguez-Blanco challenges Pattaro’s empirical conception of human agency.