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The Coxford Lecture* Of Living Trees and Dead Hands: The Interpretation of Constitutions and Constitutional Rights

Published online by Cambridge University Press:  20 July 2015

Extract

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The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree constitutional interpretation. The only “living trees are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order.

Type
The Coxford Lectures
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2009 

Footnotes

*

November 26, 2008. This is the inaugural lecture in an annual series at the University of Western Ontario Law School enabled by the generosity of Stephen Coxford.

References

* November 26, 2008. This is the inaugural lecture in an annual series at the University of Western Ontario Law School enabled by the generosity of Stephen Coxford.