Constitutional Rights as Moral Judgments

Abstract

This essay offers a criticism of Robert Alexy’s argument about the ‘dual’ nature of law. It argues for the single nature of law as a moral judgment, on the basis of a morally constructivist argument along a way proposed by Kant in the Metaphysics of Morals. If we follow the Kantian argument, we cannot say, with Alexy, that constitutional rights are ‘institutionalised’ by the fact of legislation. There is nothing to be ‘institutionalised, because there is no canonical statement of human rights to be found. The law is not a list of rules or standards or any other kind of triggers for action. What makes action binding under the law is our own reason, which interprets the social world around us, including the laws made according to standing political processes of our community, if that community respects the fundamental principles of equal citizenship as outlined in a constitution.

Keywords: Jurisprudence, Kant, human rights, Dworkin, Chagos