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Getting Constitutional Theory into Proportion: A Matter of Interpretation? †

Getting Constitutional Theory into Proportion: A Matter of Interpretation? † , , No. 1 (2007), pp. 175–191 doi:10.1093/ojls/gql031 Published Advance Access February 3, 2007 : A Matter of Interpretation?y NATHAN GIBBS* Professor Beatty’s book, The Ultimate Rule of Law is a timely contribution to a number of important and intersecting debates in constitutional theory, jurisprudence and European law. The principal issue this book addresses is the increased importance of constitutional law and adjudication at national, supranational and even transnational levels. In a number of jurisdictions, it is now commonplace that matters of political importance and controversy are subject to constitutional adjudicative decision-making. At the same time, we have also seen something of a renaissance of general constitutional theory, albeit a constitutional theory that is critical or at least wary of these trends. Hegelian-Marxist, Communitarian and Schmittian critiques of liberal constitutionalism have been revived in order to articulate a range of concerns over the limits and sustainability of these same trends.1 Even from within selfconsciously liberal perspectives, the attractions of the institution of constitutional review as a constraint on the ordinary political process will have diminished for those convinced by Waldron’s ‘rights-based’ argument in favour of the primacy of ordinary legislative procedure.2 It should also be noted that more http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Oxford Journal of Legal Studies Oxford University Press

Getting Constitutional Theory into Proportion: A Matter of Interpretation? †

Abstract

, , No. 1 (2007), pp. 175–191 doi:10.1093/ojls/gql031 Published Advance Access February 3, 2007 : A Matter of Interpretation?y NATHAN GIBBS* Professor Beatty’s book, The Ultimate Rule of Law is a timely contribution to a number of important and intersecting debates in constitutional theory, jurisprudence and European law. The principal issue this book addresses is the increased importance of constitutional law and adjudication at national, supranational and even transnational levels. In a number of jurisdictions, it is now commonplace that matters of political importance and controversy are subject to constitutional adjudicative decision-making. At the same time, we have also seen something of a renaissance of general constitutional theory, albeit a constitutional theory that is critical or at least wary of these trends. Hegelian-Marxist, Communitarian and Schmittian critiques of liberal constitutionalism have been revived in order to articulate a range of concerns over the limits and sustainability of these same trends.1 Even from within selfconsciously liberal perspectives, the attractions of the institution of constitutional review as a constraint on the ordinary political process will have diminished for those convinced by Waldron’s ‘rights-based’ argument in favour of the primacy of ordinary legislative procedure.2 It should also be noted that more
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