Document Type

Article

Publication Date

1989

Source Publication

Supreme Court Law Review. Volume 11 (1989), p. 507-527.

Keywords

Constitutional law; Constitutional theory; Legal theory; Law and Politics; Constitutional adjudication

Abstract

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that constitutional adjudication should in some manner be informed by this pursuit. But to say that judges, like other governmental figures, should act for the good of the community and its members does not throw much light on what that good entails and how it can be achieved, or help us understand the relative roles of judges, legislators and administrators in the process. This paper argues that good constitutional decision-making requires a variety of particular arts and skills that are best learned by experience and practice within a certain constitutional tradition. These skills, in some degree, are possessed by able politicians, administrators and judges alike - but each role has its distinctive traditions, which emphasize different skills and abilities. Nevertheless, tradition alone is an inadequate basis for making constitutional decisions. Only on the assumption that a transcendent basis for moral and political judgment exists can debates within a society over the justice and morality of existing arrangements be anything other than a senseless battle of wind and tide.

Comments

Reprinted in Barker, ed., Contending Perspectives (Toronto: Nelson Canada, 1991).

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