Abstract

O'BRIEN, Maggie. Charter interpretation, judicial review and a community's constitutional morality: responding to Natalie Stoljar on Wil Waluchow. Probl. anu. filos. teor. derecho [online]. 2015, n.9, pp.255-278. ISSN 2448-7937.

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 contend 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.

Keywords : Community Constitutional Morality; Charter Interpretation; Judicial Review; Jurisprudential Methodology; Wil Waluchow; Natalie Stoljar.

        · abstract in Spanish     · text in English     · English ( pdf )