Power and Principle in Constitutional Law
The edifice of law, public or private, assumes deliberation about a particular
ordering of social life which presupposes the distinction between higher
and ordinary law, in that it subjects all official action of law-making, administration
and adjudication, to a general framework of institutions at the service of
equal rights. These self-embracing constitutional institutions are the conditions
for political legitimacy. Constitutional law is therefore invested with a very distinct
moral purpose: the construction of an effective and legitimate scheme of
social co-operation that enables us to live side by side as free and equal citizens.
Power alone cannot achieve this task. In this sense, legal reasoning just like moral
reasoning needs no foundations. It is continuous with practical reason about how
to be a person in the world. The constitution is a practical judgment, defended
and justified like all others.
P Eleftheriadis, 'Power and Principle in Constitutional Law' (2016) 45 Netherlands Journal of Legal Philosophy