Constitutionalism and the Common Good: on the role of unwritten principles

Foran, M. P. and Casey, C. (2023) Constitutionalism and the Common Good: on the role of unwritten principles. In: St-Hilaire, M., Alford, R. and Kinsinger, K. (eds.) Supreme Court Law Review, 2nd Series. LexisNexis, pp. 169-196. ISBN 9780433523772 (doi: 10.2139/ssrn.4134632)

Abstract

In this paper, we link Canadian debates over unwritten constitutional principles to debate over the revival of the classical legal tradition in the form of common good constitutionalism. We argue that debates over unwritten constitutional principles cannot be resolved without some recourse to the philosophical or theoretical concept of a constitution: what it is, what it does, what it is for, and whom it is for. The answers to these questions are essential for any discussion of unwritten principles of constitutionalism. We then argue that common good constitutionalism can offer a compelling framework for understanding the purpose of constitutionalism and how to concretise its core operative principles such as the separation of powers, the rule of law, respect for human rights, and judicial independence. However, we also stress that common good constitutionalism is emphatically a theoretical and conceptual framework and not a laundry list of positions on contested questions of institutional design. Part of its attraction will be that it gives a sound and shared principled ground – a yardstick – for mediating and settling such disagreements.

• Item Type: Book Sections
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Foran, Dr Michael
• Authors: Foran, M. P., and Casey, C.
• Subjects: K Law > K Law (General)
• College/School: College of Social Sciences > School of Law
• Publisher: LexisNexis
• ISBN: 9780433523772