Charter interpretation, judicial review and a community's constitutional morality: Responding to Natalie Stoljar on Wil Waluchow

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Abstract

In Natalie Stoljar’s paper, ‘Waluchow on Moral Opinions and Moral Commitments’ she raises two objections to W.J. Waluchow’s common law theory of charter interpretation. In this paper I aim both to provide a brief overview of Waluchow’s theory of charter interpretation and to respond to the challenges advanced by Stoljar in her article. In my paper I have called the two main criticisms Stoljar presents the ‘epistemic worry’ and the ‘methodological worry’. Discussing and addressing these worries, I believe, reveals a confusion on the part of Stoljar about Waluchow’s theory. Namely, I argue that Stoljar misunderstands what Waluchow intends to accomplish in distinguishing between moral opinions and moral commitments. As well, I con- tend that she makes assumptions about the methodology involved in Waluchow’s theory of charter interpretation that are precipitate and ultimately based on misunderstandings. In replying to Stoljar, I hope I have both clarified Waluchow’s theory and, in doing so, added strength to his claim that we can reconcile judicial review with democracy.
Original languageEnglish
Pages (from-to)255-278
Number of pages25
JournalProblema. Anuario de Filosofía y Teoría del Derecho
Volume9
DOIs
Publication statusPublished - 31 Dec 2015

Keywords

  • community constitutional morality
  • charter interpretation
  • judicial review
  • jurisprudential methodology
  • Wil Waluchow
  • Natalie Stoljar

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