The Return of Grand Theory in the Juridical Sciences?
| Published date | 01 May 2007 |
| Date | 01 May 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00649.x |
REVIEWARTICLE
The Return of Grand Theory in the Juridical Sciences?
Thomas Poole
n
Alan Bru dner,Constitutional Goods, Oxford: Oxford University Press, 2004, xii
þ450pp,hb d70.00.
INTRODUCTION
It maybe time to start talking in termsof a ‘Toronto school’ of public law scholar-
ship.Not only is the Universityof Toronto remarkable forthe strength and depth
of its output,
1
it is also in the vanguard of a turn to the ‘grand style’ of constitu-
tional theory. ‘Grand theory’ in this context exhibits the following characteris-
tics.
2
In seeking to articulate the best general theory of the (liberal) constitution,
the inquiry tends to take the form of a search for the ‘good constitution’.
3
This
course of action is pursued in a philosophical manner, as one would expect, often
fusing contemporary jurisprudential trends with‘high’theory. Grand theory also
tends to see the‘cross-fertilisation’ or ‘migration’ of constitutional ideas as a central
facet of contemporaryconstitutionalism, a position that serves to undermine the
claim that constitutional discourse is irreducibly jurisdictional.
4
The application of grand theory techniques by some Toronto scholars has
tended to produce strangely convergent results. Grand theory purports to
be inclusive, in that it attempts both to accommodate diverse intellectual frame-
works and to embrace as many (liberal) constitutions as possible. But this very
n
Law Department,London Schoolof Economics.
1 See, eg, D. Dyzenhaus, Legalityand L egitimacy(Oxford: OxfordUniversity Press, 2004);‘The Unity
of Public Law’ in Dyzenhaus (ed), The Unity of Public Law (Oxford: Hart Publishing, 2004);
D. Beatty,The Ultimate Rule of Law (Oxford:Oxford University Press, 2004); R. Hirschl, Tow a r d s
Juristocracy:The Origins and Consequences of the New Constitutionalism (Cambridge, Mass: Harvard
University Press, 2004); K. Roach, The Supreme Court on Trial: Judicial Activism or Democratic
Dialogue?(Toronto:Irwi n Law, 2001); S. Chaudhry,‘The Lochner Era and ComparativeConstitu-
tionalism’(2004) 2 International Journal of Constitutional Law1; K. Knop,‘Hereand There: Inter-
national Lawin Domestic Courts’ (2000) 32 NewYorkUniversityJournalof InternationalLaw and Politics
501.
2 Cf Q. Skin ner (ed), The Return of Grand Theory in the Human Sciences (Cambridge: Cambridge
University Press,1985) 3, where Skinner, following C.Wright Mills, describes Grand Theory as
‘the belief that the primarygoal of the social disciplines should be that of seeking to construct ‘‘a
systematic theoryof ‘the natureof man a nd society’’’.’
3 Cf SirJ. Laws,‘TheCo nstitution:Morals and Rights’ [1996] PL 622.For criticism of Laws’position
see J.A. G. Gri⁄th,‘The Brave NewWorldof Sir John Laws’(200 0)63 MLR 159.
4 See, eg, S. Choudhry(ed),The Migration of ConstitutionalIdeas (NewYork & Cambridge: Cambridge
UniversityPress, 2006); D.Schneiderman,‘Property Rights and RegulatoryInnovation: Compar-
ing Constitutional Cultures’ (2005) 4 Journal of International Constitutional Law 371. See also
M.Tushnet,‘The Possibilities of ComparativeConstitutional Law’ (1999) 108 Yale LJ 1225.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(3)MLR 48 4^504
inclusiveness of approach tends, almost paradoxically, to produce conclusions
that might appear to some to be sti£ingly over-prescriptive. There is certainly a
propensity among grand theorists to bring almost every conceivable aspect of
public life ^ politics, social policy, political economy, and so on ^ within the
ambit ofconstitutional law. And the moral universalism inherentto this approach
often produces prescriptions for constitutional and juridical practice that are any-
thing but lowest common denominators.
5
Furthermore, the speci¢city of the
constitutional principles that tend to arise from the application of grand
theory often seems to leave little room for the interplay of democratic politics.
Toronto scholars seem almost united in their belief that the courts have an abso-
lutely pivotal role within the good constitution.
6
But carving out such a central
role for the courts might leave some sceptics wondering whether democracy
is not in danger of becoming the ‘dirty little secret’
7
of the purveyors of grand
theory ‘Toronto-style’.
CONSTITUTIONAL GOODS:THE ‘TRINITARIAN’APPROACH
Alan Brudner has taught at the University of Toronto for over two decades. His
new book, Constitutional Goods, is a monumental piece of work which displays all
the hallmarks of exceptional scholarship.
8
It is breathtaking in scope and repre-
sents the grandest of grand constitutional theory.
9
Its purpose is to provide a gen-
eral theoryof the liberal constitution which transcends the limitations of various
rivals. Brudner identi¢es three competing conceptions of the liberal constitution:
libertarianism, egalitarianism and communitarianism. Despite their di¡erences,
each of these paradigms shares the same animating value: namely‘con¢dence in
the worth of the individual’ (or ‘the liberal con¢dence’).
10
None of the existing
paradigms is capable of standing on its own as a complete theory of the liberal
constitution, for reasons that we will examine later. Having established this,
Brudner does not intend to reject these three paradigms in their entirety. His
aim, rather, is to‘sift the ore from the rock’ (p 1) by isolating the aspects of each
5 The fact that such prescriptions often draw their inspiration from Canadian sources generatesthe
suspicion that grandtheory i sbe ing used as a means of exporting certain favouredaspects of Cana-
dian constitutional practice.
6 But see Hirsch l,Towards Juristocracy,n1above.
7 R. M. Unger,What Should LegalAnalysis Become? (London: Verso,1996) 72^3. See also J.Waldron,
‘Dirty Little Secret’(1998) 98 Columbia LR510.
8 Brudner, ConstitutionalGoods (Oxford: Oxford University Press, 2004). Unattributed page refer-
ences are to this work.
9 Brudner hims elfcomes close to embracing the term when he discusses the choice between ‘grand’
theories of constitutional law of the sort his book o¡ers and ‘incompletely theorised’ solutions
which he rejects (p 293).
10 More fully elaborated, ‘the liberal con¢dence consists of the following propositions: that the indi-
vidual agent possesses ¢nal worth (which I shall sometimes call end-status) so that there is no more
fundamental end to which it maybe unilaterally subordinate; that it does so on its own,that is, as a
separate individual, distinct from (that is, not immersed in or obliterated by orsubsumed under)
other individuals as well as from the largergroups, society, or political associationof which it is a
member;a ndthat the individual’sworth is inviolable,which means that everyone is under a dutyto
respect it by forbearingfrom attempts to subdue the individual’s agency to his own ends or to some
supposed superior end such as tribe, nation, society, or state’ (p13).
Thomas Poole
485
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(3)MLR 484^504
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