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