In Search of Foundations: Ethics and Metaethics in Constitutional Adjudication
| Author | Justin Lindeboom |
| Date | 01 November 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12472 |
| Published date | 01 November 2019 |
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Modern Law Review
DOI: 10.1111/1468-2230.12472
REVIEW ARTICLE
In Search of Foundations: Ethics and Metaethics in
Constitutional Adjudication
Justin Lindeboom∗
Boˇ
sko Tripkovi´
c,The Metaethics of Constitutional Adjudication, Oxford:
Oxford University Press, 2017, 272 pp, hb £60.00.
Courts, no doubt, can get moral answers wrong, but can they also get morality
itself wrong? This is the ambitious question asked by Boˇ
sko Tripkovi´
cinThe
Metaethics of Constitutional Adjudication (MeCA) (8). This book aims to elucidate
the use of ethical or moral arguments1in constitutional reasoning by searching
for their metaethical foundations. The first part identifies and analyses three eth-
ical reasoning ideal-types from a comparative constitutional perspective. These
ideal-types are arguments from constitutional identity (Chapter 2), common senti-
ment (Chapter 3) and universal reason (Chapter 4). In constitutional adjudication,
these types of ethical argument are often construed as self-standing methods of
ethical argument, as the book demonstrates with reference to several jurisdic-
tions including the United States, South Africa and Israel. Tripkovi´
c attempts
to show how all three ideal-types lack a credible metaethical foundation.
In the second part, Tripkovi´
c develops his own metaethical theory, drawing
particularly from evolutionary ethics. This theory is based on the contingency
of our ethical beliefs, and locates the metaethical foundation of value in the
interaction between confidence in our firmly held beliefs and our critical reflection
upon them (Chapter 5). The final chapter applies this metaethical theory to
constitutional adjudication to show how confidence and reflection can serve as
a basis of a theory of constitutional ethics (Chapter 6).
The book’s approach is orig inal and thought-provoking. Metaethics is likely
to be unfamiliar ground for most lawyers, and may appear so abstract that its
∗Lecturer in European Law, Faculty of Law,University of Groningen. I am thankful to Sara Bertotti,
Dimitry Kochenov, Harr y Panagopulos,Paul Roberts, Bar t Wolbers and an anonymous MLR referee,
for valuable comments and suggestions. The usual disclaimer applies.
1 In favouring the term ‘ethical argument’, the book follows P. Bobbitt, Constitutional Fate: Theory
of the Constitution (Oxford: OUP, 1982), but the terms ‘ethics’ and ‘morality’ are used inter-
changeably, as justified at MeCA, 5, fn 5. Any possible distinctions between the two are not
relevant for our purposes.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(6) MLR 1157–1175
Ethics and Metaethics in Constitutional Adjudication
relevance for constitutional law practice is obscure. Tripkovi´
c succeeds in
demonstrating that metaethics does matter: different conceptions of what
‘counts as’ morality are likely to affect substantive outcomes in concrete cases.
As I aim to show in this review, however, MeCA’s categorisation of ethical ar-
gument at times seems crudely reductive, deploying an unrealistic benchmark
of ‘timeless and mind-independent moral facts’. MeCA’s own metaethical the-
ory is not entirely convincing, as it is so infused with normative reasoning that
it fails to ‘climb outside of morality’.2
In what follows, I first introduce the main aims of the book and situate
its project in related literature. Then, to better grasp Tripkovi´
c’s metaethical
arguments, I briefly discuss the relationship between the concepts of ‘moral
realism’, ‘mind-independency’ and ‘objectivity’. Thirdly, I critically review
the three ideal-types of ethical argument discussed by Tripkovi´
c. Lastly, I
discuss the book’s metaethical claims – questioning whether they are genuinely
metaethical – and how the central notions of confidence and reflection apply
in the context of constitutional ethics.
METAETHICS AND LEGAL REASONING
This book’s main contribution to the intersection between law and morality
is its metaethical perspective. Tripkovi´
c wants to assess ethical argument in
constitutional reasoning in light of the question of what morality itself is.
In doing so, the book deviates from most existing work on the relationship
between law, constitutionalism and morality, which can be divided roughly
into two approaches. One is the well-known debate in general jurisprudence
on the question of the separability of law and morality,3which has developed
into highly abstract discussions on whether criteria for legal validity include
moral facts,4and whether the concept of law can be understood without
moral appraisal.5Metaethics is largely absent from this current strand of legal-
philosophical discussion.6A second approach, located in constitutional theory,
is less preoccupied with abstract conceptual questions and instead focuses on
moral features of constitutional law and legal theory,7such as the virtues of
2 cf R. Dworkin, ‘Objectivity and Truth: You’d Better Believe It’ (1996) 25 Philosophy & Public
Affairs 87, 128 (remarking that ‘we cannot climb outside of morality to judge it from some
external Archimedean tribunal, any more than we can climb out of reason itself to test it from
above’).
3 Often taking as its starting point J. Austin, The Province of Jurisprudence Determined (Indianapolis,
IN: Hackett, 1998 [1832]); and H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’
(1958) 71 Harvard LR 593.
4 See S.J. Shapiro, ‘The Hart/Dworkin Debate: A Short Guide for the Perplexed’ in A. Ripstein
(ed), Ronald Dworkin (Cambridge: CUP, 2012).
5 B. Leiter, ‘Beyond the Hart/Dworkin Debate: the Methodology Problem in Jurisprudence’ in
Naturalizing Jurisprudence (Oxford: OUP, 2007); J. Finnis, Natural Law And Natural Rights (Oxford:
OUP, 2nd ed, 2011) ch 1.
6 See however D. Plunkett, S.J.Shapiro and K. Toh (eds), Dimensions of Normativity: New Essays on
Metaethics and Jurisprudence (Oxford: OUP, 2019).
7 Recently, for example, J. Weinrib, Dimensions of Dignity: The Theory and Practice of Modern
Constitutional Law (Cambridge: CUP, 2016); D. Grimm, Constitutionalism: Past, Present, and
1158 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(6) MLR 1157–1175
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