A Kantian system of constitutional justice
Rights, trusteeship, balancing
Bibliographic Data
| ID | 13009017 |
|---|---|
| Authors | Alec Stone Sweet (0000-0002-7603-6910, National University of Singapore, corresponding author), Eric Palmer (0000-0002-1406-8060, Yale University, corresponding author) |
| Year | 2017 |
| Volume | 6 |
| Issue | 3 |
| Pages | 377-411 |
| Publication date | 2017-11-01 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Global Constitutionalism (JOURNAL) |
| Journal identifiers | ISSN: 2045-3817 • E-ISSN: 2045-3825 |
| Publisher | Cambridge University Press (CUP) (PUBLISHER) |
| DOI | 10.1017/s2045381717000107 |
| OpenAlex | W2589895806 |
| Language | EN |
| Citations received | 5 |
| References cited | 33 |
The article develops a Kantian account of constitutional justice: the explication of those structural features of a legal system whose purpose is to optimise a polity’s capacity to achieve a Rightful condition. The People, in enacting a rights-based constitution, have placed their freedom in trust. Rights ground a system of reciprocal freedom among individuals, while conferring on officials the authority to make and enforce law, subject to constraints laid down by the Universal Principle of Right [UPR]. A constitutional court, the trustee of the regime, supervises the rights-regarding acts of all other officials, assesses the reasons officials give when they take decisions that burden rights, and invalidates those acts when reasons given to justify such burdens fail to meet the demands of the UPR. Although some rights will be expressed in absolute terms, most will be qualified by a limitation clause. In adjudicating qualified rights, the court can do no better than to adopt the proportionality principle. The UPR, operationalised through proportionality analysis, lays down a basic criterion for the legitimacy of all law. Because Public, International, and Cosmopolitan Right share certain micro-foundations in common, we can extend the analysis to transnational systems of rights protection
Bill of rights · Constitution · Explication · Fundamental rights · Human rights · Law and economics · Legitimacy · Political science · Polity · Proportionality (law · Reservation of rights · Right to property · Sociology · Judicial and Constitutional Studies · Law · Legal and Constitutional Studies · Political Philosophy and Ethics
Governing with Judges
Kant
Force and Freedom
The Trolley Problem
The Core of the Case against Judicial Review
The Role of Conscious Reasoning and Intuition in Moral Judgment
Kant on the Right to Freedom
The metaphysics of morals (1797)
Kant and Modern Political Philosophy
Kantian Theory and Human Rights
The Public Form of Law
Trustee Courts and the Judicialization of International Regimes
A cosmopolitan legal order
Proportionality and Principled Balancing
The Idea of Socratic Contestation and the Right to Justification
Legal Positivism as an Idea About Morality
Force and Freedom
Kant and Modern Political Philosophy
Theory and Practice of Delegation to Non-Majoritarian Institutions
Constitutional Courts and Parliamentary Democracy
III. The Subversive Kant
| Unique citing works | 5 |
|---|---|
| Citations per year | 0,71 |
| Citation span | 2019 - 2020 (2) |
| Citation velocity | historical |
| Highly cited | No |
| Citation types | Neutral: 5 |