Common Good, Public Reason and Constitutional Law

Wojciech Sadurski, University of Sydney

The most feasible conception of the common good is one that refers to the legitimate motives for proposing and enacting collective authoritative decisions, which can be applied to, and complied with by, those who do not necessarily agree with the substantive merits of those decisions. Concretization of such a conception is found in the idea of public reason, elaborated upon with some sophistication by political liberals, most influentially by John Rawls. When properly modified in response to its critics (notably Ronald Dworkin), this idea resonates with a popular constitutional doctrine which calls for invalidation of laws tainted by wrong (i.e. unconstitutional) motives; thus the concept of public reason may be a useful tool in identifying which motives should be found unconstitutional. As scrutiny reliant upon the second-guessing of actual legislative motives is potentially unworkable, what is needed is an “objectified” approach to the motives. This can be detected through reasonableness analysis, perhaps supported by the device of proportionality. But there are limits to the arbitrary “manufacturing” of reasons, and the test of public reason is of value not only in the scrutiny of laws already enacted, but also as an appeal to lawmakers that only some types of arguments should be used in public discourse. While at first blush it may be seen as a prescription for hypocrisy, in fact the concept of public reason may play an important therapeutic and reflexive role: it may teach us to use only such arguments in public discourse which are respectful of fellow citizens who may disagree due to varying ideologies, religions and philosophical outlooks.

Event date: Thursday, January 24, 2013, from 12:30 PM to 2:00 PM
Location: Solarium, Falconer Hall, Faculty of Law, University of Toronto

Wojciech Sadurski is Challis Professor of Jurisprudence at the University of Sydney and Professor of the Centre for Europe at Warsaw University. He has taught at several institutions around the world, such as Cornell Law School and Cardozo Law School in the United States, and at universities across Europe: in Trento, Paris and Warsaw. He was Professor of Legal Theory and Philosophy of Law at the European University Institute in Florence from 1999-2009, serving as Head of Department of the Law at the EUI in 2003-2006. Specialising in philosophy of law, political theory, constitutional theory and comparative constitutional law, his most recent books include: Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, 2005), Equality and Legitimacy (Oxford University Press, 2008) and Constitutionalism and the Enlargement of Europe (Oxford University Press, 2012). A member of a number of governing and programme bodies of think tanks and NGOs dealing with human rights and democracy promotion, he is currently Chairman of Academic Advisory Board of the Community of Democracies. A full profile and list of publications is available at http://sydney.edu.au/law/about/staff/WojciechSadurski/index.shtml.

A light lunch will be served.

For more workshop information and a copy of the draft paper, please contact Nadia Gulezko at n.gulezko@utoronto.ca