In-Person | Constitutional Theory as Institutional Inquiry

Please note that the time allocated for this colloquia will be devoted to discussion.

Speaker: Professor David Dyzenhaus (University of Toronto)

About the Session

I argue that constitutional theory lives in the space between philosophy of law and the messy ‘real’ world. Constitutional theory is that branch of philosophy of law that discusses the optimal institutional structure for a particular society to inquire into the values that do and should form its compulsory, that is, legally enforced, public morality. Its main question is how the institutions of legal order should be configured so as to make that inquiry the best it can be. I begin with the debate in constitutional theory between ‘political constitutionalists’ and ‘legal constitutionalists’ and suggest that it is deadlocked by its focus on whether the judiciary or parliament is the legitimate guardian of the liberal democratic values of the constitution. I then sketch Bernard Williams’s ‘Realist’ criticism of the very assumption that the only legitimate societies are liberal democratic ones and his attempt to refocus political philosophy on the way in which legitimacy should be understood in accordance with its role in sustaining political order per se. Finally, I argue that the deadlock can be broken by placing the debate on pragmatist terrain, the terrain where the experience of legal government provides the test for theory, and which I show is exemplified by the methodology of John Austin’s utilitarian legal positivism.

About the Institute

The Institute brings together political and legal theorists from Law, Political Science and Philosophy and organises regular colloquia in terms 2 and 3. Read more about the Institute's work.

If you would like to be added to the ILPP mailing list please contact us at laws-events@ucl.ac.uk.

Book your place

Image by Walter Frehner from Pixabay