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- Title
THE HARD PROBLEM OF LEGALITY.
- Authors
BLAKER, JAMIE
- Abstract
Does the Australian Constitution guarantee the rule of law? That is a hard question, and in this article, I seek to explain why. Put simply, the question is hard because our answer will depend on our broader theory of how to interpret a Constitution. If one commits to the theory of originalism, for example, one will conclude that the Constitution does not guarantee the rule of law. Yet if one commits to other popular and credible theories - such as perfectionism or pragmatism - one may reasonably form the view that the Constitution does substantially guarantee the rule of law. In the earlier parts of this article, I establish this link between interpretive theories and the rule of law under the Constitution. In the latter parts of the article, I go about discrediting one interpretive theory - originalism. Having discredited originalism, I conclude that we ought to take other interpretive theories, such as perfectionism and pragmatism seriously. Ipso facto, we must take seriously the possibility that the Constitution, on its best interpretation, does guarantee the rule of law. This conclusion is in tension with the work of Lisa Burton-Crawford, to which this article is a response.
- Subjects
RULE of law; CONSTITUTIONAL law; ORIGINALISM (Constitutional interpretation)
- Publication
University of Western Australia Law Review, 2019, Vol 46, Issue 1, p1
- ISSN
0042-0328
- Publication type
Article