The Metaethics of Constitutional Adjudication

The book explores the metaethical foundations of value-based arguments in constitutional adjudication. The argument develops in four steps. First, the book identifies three dominant types of value-based arguments in comparative constitutional practice: the arguments from constitutional identity, common sentiment, and universal reason. Second, it examines the assumptions about the nature of moral value implicit in these arguments and subjects them to a critique. The book maintains that these arguments presuppose inadequate conceptions of value and fail as self-standing approaches to moral judgment. Third, the book develops an account of moral value and explains its practical consequences. It argues that a credible understanding of value suggests that the appropriate moral judgment emerges from the dynamics between practical confidence, which denotes the inescapability of the self and evaluative attitudes it entails, and reflection, which denotes the process of challenging and questioning these attitudes. Fourth, departing from this conception of value, the book reconstructs the existing value-based arguments of constitutional courts. It applies the notions of confidence and reflection to constitutional reasoning and shows how the arguments from constitutional identity, common sentiment and universal reason can be combined to refashion the moral perspective of a constitutional court so that it coheres with a sound understanding of value. The book argues that the moral inquiry of the constitutional court ought to depart from the emotive intuitions of the constitutional community and then challenge these intuitions through reflective exposure to different perspectives in order to better understand and develop the underlying constitutional identity.