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Philosophy and Constitutional Theory: The Cautionary Tale of Jeremy Waldron and the Philosopher’s Stone

Murray, K. L. ORCID: 0000-0002-8635-6483 (2019). Philosophy and Constitutional Theory: The Cautionary Tale of Jeremy Waldron and the Philosopher’s Stone. Canadian Journal of Law & Jurisprudence, 32(1), pp. 127-158. doi: 10.1017/cjlj.2019.6


This article considers the relationship between moral philosophy and constitutional theory through a detailed examination of the work of Jeremy Waldron—an unavoidable voice in contemporary constitutionalist debate. Through a rigorous, original and holistic deconstruction of his work and its philosophical implications, I argue that Waldron’s engagement with core philosophy within his constitutional scholarship is wholly problematic, containing a number of ambiguities and apparent inconsistencies. These issues, I suggest, may stem from an at times rather casual treatment of the realist/anti-realist issue of core philosophy, perhaps owing something to his view that it is in fact safely irrelevant to his constitutional pursuits. In any case, this view, I argue, is misguided, and the problems which result are real: they not only create issues of theoretical consistency and clarity; they put Waldron’s constitutional theory in danger. Like all good tales, I suggest there are lessons to be learned from this: one must think, and think carefully, about the philosophical background of one’s work, and take care in setting this out in a clear, thorough and coherent way—the stakes are too high not to. With this in mind, this article also lays some groundwork for a path into constitutional theory firmly grounded in my own anti-realist moral scepticism.

Publication Type: Article
Additional Information: This article has been published in a revised form in Canadian Journal of Law and Jurisprudence This version is published under a Creative Commons CC-BY-NC-ND. No commercial re-distribution or re-use allowed. Derivative works cannot be distributed. © Canadian Journal of Law and Jurisprudence 2019
Publisher Keywords: Jeremy Waldron, philosophy, constitutional theory, realism, anti-realism, objectivism, anti-objectivism, moral scepticism, irrelevance thesis, constitutional authority, instrumentalism
Subjects: B Philosophy. Psychology. Religion > B Philosophy (General)
Departments: The City Law School > Academic Programmes
SWORD Depositor:
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Available under License Creative Commons Attribution Non-commercial No Derivatives.

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