Issues in constitutional and legal theory I

Increasingly judges and courts resort to vagueness and ambiguity to deal with their limited policymaking skills and to build and maintain institutional prestige in the face of potential opposition (STATON, VANBERG, 2008). In the short run, this strategy has proven to be an important mechanism of compliance both to international and domestic courts' (STERNBERG, 2018 - STATON, ROMERO, 2019). But in the long run, can vague decisions damage courts' authority or contribute to constitutional erosion in these countries? This paper aims to explore the intentional use of vagueness and ambiguity in Brazilian Supreme Court jurisprudence, based on a sample of COVID-19 decisions, a context in which the Chief Justice assumed the need for an extra component of resilience. While this strategy proved to be useful for shielding the court from political actors and giving a prompt response to civil society, the court decreased its levels of compliance putting at risk the 1988 constitutional design.

Recent scholarship in constitutional law has raised doubts whether constitutional scholars can be political. A strong scepticism, supported by Komárek, argues for a strict professionalism that sustains that the role obligations of scholars override the norms of ordinary morality , whereas a moderate version, advocated by Khaitan, presents instrumental reasons against academic scholarship that is motivated by an external political goal. In response to strong scepticism, I argue for a ‘unified conception of moral responsibility‘, in the sense of Postema, which aims to achieve an integration between ordinary and professional morality. In response to the weak version, I argue that an inquiry into a scholar‘s motives is an illegitimate criterion to evaluate an academic work. Following Raz, I conclude that an interpretive approach to academic freedom should reject the idea of a ‘narrow morality‘, which is based on a fundamental divide between one‘s duties and ethical pursuits.

This paper posits that Adrian Vermeule's concept of “common good constitutionalism“ has little to do with the Aristotelean Thomistic tradition of constitutional theory. It has to do more with the modern constitutional theory with some integralism spin. While the concept of common good constitutionalism has its conceptual flaws, it can be a basis for the constitutional theory that is directed towards the common good. This paper proposes a concept of Thomist constitutionalism that goes back to the root of Thomas Aquinas theory of human dignity. Aquinas argued that the common good is a reality so central to the perfection of man and his dignity. Thus, the principal meaning of the common good, for Thomas Aquinas, is therefore not a collection of material goods to be distributed among many (an instrumental common good), but consists primarily in spiritual goods, a substantive common good, that is, in those goods which are perfective of the soul.

The flaws of a constitution can sometimes be seen in a particularly controversial judicial decision, where judges, perhaps following the constitutional status quo, arguably permit a ‘wrong‘ outcome and do little to check the powers of constitutional actors. This paper will seek to draw new perspectives on one such decision. The House of Lords‘ decision in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2008] UKHL 61 concerned the ability of the United Kingdom‘s government to use the royal prerogative to make laws for a remnant of the country‘s colonial empire. The House of Lords‘ decision in Bancoult (No.2) concerned the original removal of the Chagossian people from the Chagos Islands. In the paper I draw on my empirical research which has involved interviewing those involved with the litigation and thus enabling me to combine a critique of this constitutionally flawed decision, with a much-needed human element.

Constitutions are posited, authoritative, paramount obligation-imposing rules according to which all other laws derive their validity. However, this interpretation of what a constitution is hides the normative commitments directing the authoritativeness of a posited constitution. This may be called the conflict between what a constitution 'is' and what it 'ought to be'. One may ask: Is it possible to identify the oughts of constitutions? Would there be some implied normative presuppositions so essential to the nature of a constitution that ignoring or repealing them would render the repealing act unconstitutional? These questions can be framed in terms of the doctrine of the basic structure of the constitution. In this article, I aim to demonstrate that if constitutions have standards so fundamental that certain acts can be contrary to the constitution even when not formally opposing its determinations, the nature of constitutions must be predicated on some normative presuppositions.