Rights, common good, and the separation of powers

Foran, M. (2023) Rights, common good, and the separation of powers. Modern Law Review, 86(3), pp. 599-628. (doi: 10.1111/1468-2230.12769)

Abstract

Common good constitutionalism seeks to ground and legitimate choices of constitutional design and interpretation in a manner committed to pursuing the flourishing of all members of the community. This raises important questions relating to the separation of powers and fundamental rights protection. This paper seeks to advance and defend an account of rights-based judicial review from within a common good constitutional framework. It will argue that rights and the common good are co-constitutive: a genuinely common good will ensure the protection of fundamental rights and genuinely fundamental rights will help constitute and further the common good. With this in mind, a conception of the separation of powers will be advanced wherein different organs of state act collaboratively to ensure both that fundamental rights are protected and that the state can pursue goals which help to further the common good.

• Item Type: Articles
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Foran, Dr Michael
• Authors: Foran, M.
• College/School: College of Social Sciences > School of Law
• Journal Name: Modern Law Review
• Publisher: Wiley
• ISSN: 0026-7961
• ISSN (Online): 1468-2230
• Published Online: 03 November 2022
• Copyright Holders: Copyright © 2022 The Authors
• First Published: First published in Modern Law Review 86(3):599-628
• Publisher Policy: Reproduced under a Creative Commons license

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