The Moral Unity of Public Law

Abstract

Instead of a public law fragmented into discrete departments, we should envisage a unified scheme of constitutional rights and legal standards, expressing a coherent moral theory of the rule of law. That moral theory underpins all legitimate legal orders, properly respectful of human dignity; and common law adjudication is best understood as the working out, according to context, of the practical implications of the theory. An initial focus on more local legal tradition ultimately leads to a broader inquiry about the true demands of human rights and civil liberties, offering the prospect of a larger vision of democratic constitutionalism. While Jeremy Waldron has doubted the similarity between legal analysis and moral reasoning – rejecting an analogy with Rawlsian reflective equilibrium – his view may be contested. A common law judge who attempts to reason morally in the name of the whole society, in the manner suggested by Ronald Dworkin’s theory of integrity, must take account of those legal texts and precedents that political morality makes pertinent. Legal reasoning is simply moral reasoning, attentive to historical and political context.