Preface

doi:10.1093/oso/9780199672257.002.0005

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Preface

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https://doi.org/10.1093/oso/9780199672257.002.0005

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vii–viii

Published:

July 2017

Extract

This is a book about the legitimacy and scope of constitutional review of primary legislation for its compatibility with fundamental rights. Some of its central claims have their origin in my DPhil thesis. There my primary ambition was to draw out some implications in the theory of law of the idea of institutional cooperation. That ambition was also at the heart of my first monograph, Shared Authority (Hart Publishing 2015). In the thesis constitutional review was treated as an extended illustration, an opportunity to descend from the conceptual abstraction of the debate over the nature of law and sharpen the normative edge of the anti-positivist theory I was developing.

When I started working on this book, Aleardo Zanghellini, my friend and colleague at Reading, pointed out that it was a good thing the two strands of my thesis had been disentangled and had become the subject of two separate books, with the jurisprudential one being written first. I can see now how right he was. For one thing, the audiences of the two books overlap only in part, as do their interests and theoretical concerns. Moreover, it was once I had put the jurisprudential debates behind me that the complexity of the issues I was about to explore came into full view. In grappling with the morally contentious aspects of constitutional review and trying to marry democracy and fundamental rights in sufficiently concrete institutional forms, legal theories can provide but little comfort. I do not mean by this to endorse the position that legal theory must remain detached from legal practice, though many legal philosophers hold just that position. Rather, I am thinking of the growing distance between the considerations that are commonly taken to be decisive in the theory of law and in constitutional theory. For this reason in this book I stay clear of jurisprudential controversies. Indeed, I go so far as to suggest that my account is compatible with both legal positivism and anti-positivism. That being said, there are undeniable continuities between the two books. Apart from the general claim that courts and the legislature should be understood to participate in a joint institutional project, there is the connection between separation of powers and political legitimacy—so central to my argument here—which I first elaborated in Shared Authority.

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