Friend or Foe?: Bernard Williams and Political Constitutionalism

20 Pages Posted: 6 Jun 2019

Date Written: June 5, 2019

Abstract

This paper looks at Bernard Williams’s contribution to realist normative theory, and in particular its relevance to particular debates in constitutional theory about the legitimacy of two competing models of institutional design: political constitutionalism, which endorses giving the final say on the meaning of constitutional rights to legislatures; and legal constitutionalism, which endorses giving the final say on the meaning of rights to courts. Recent defenses of political constitutionalism have made claims about the realism of their accounts when compared with legal constitutionalism, and have co-opted Bernard William’s realism to support their case. This paper examines these claims concluding that these accounts of political constitutionalism rely on a distinctly non-Williamsian form of political moralism in that they assume a legitimacy for political constitutionalism which is prior to politics and political disagreement. It offers an alternative defense of political constitutionalism, a partial defense, which, it argues, is closer to the realism of Bernard Williams than these accounts.

Keywords: legislative supremacy, judicial supremacy, judicial review, fundamental rights, political realism, political liberalism

Suggested Citation

Mac Amhlaigh, Cormac S., Friend or Foe?: Bernard Williams and Political Constitutionalism (June 5, 2019). Edinburgh School of Law Research Paper No. 2019/21. Available at SSRN: https://ssrn.com/abstract=3399547 or http://dx.doi.org/10.2139/ssrn.3399547

Cormac S. Mac Amhlaigh (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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