Jacob Weinrib (Queen's University) has posted Authority, Justice, and Public Law: A Unified Theory ((2014) 64:5 University of Toronto Law Journal 703-735) on SSRN. Here is the abstract:
In articulating the juridical relationship between the individual and the state, a theory of public law must confront a fundamental problem. The practice of public law involves appeals to ideas of both authority and justice, but these ideas appear to be antagonistic rather than complementary. On the one hand, persons must act in conformity with legal obligations enacted through the contingent exercise of public authority. On the other, persons must act in conformity with timeless ideals of public justice. The theoretical puzzle at the core of public law stems from the incompatibility of these convictions. Because enacted laws are often unjust and just laws are rarely enacted, persons often find themselves simultaneously pulled in one direction by the demands of public authority and pulled in another by the demands of public justice. To escape this tension, the leading theories invariably fragment their subject matter by reducing the whole of public law to one of its aspects, authority in abstraction from justice or justice in abstraction from authority. This essay articulates a unified theory of public law that integrates the distinctive claims of authority and justice into a common framework. My central claim is that once authority and justice are appropriately conceived and justified, they are neither antithetical virtues of opposing theoretical frameworks nor isolated notions. Instead, authority and justice are the mutually implicating principles of a legal system: the right of rulers to exercise public authority is always accompanied by a duty to govern justly; the right of the ruled to just governance presupposes the presence of publicly authoritative institutions. The unified theory of public law thereby articulates a common moral standpoint from which the distinctive claims of authority and justice may each be given their due.
And from the text:
The principles of public law delineate the juridical situation of the parties to the public law relationship. The principle of authority relates the right of government to the corresponding duty of persons to obey all valid lawgiving. The principle of justice traverses the public law relationship from the opposite direction by relating the right of every person to just governance to the corresponding duty of the government. Since the duty to govern justly accompanies the mere exercise of public authority, all branches of government – legislative, adjudicative, and executive – must bring the existing legal order into the deepest possible conformity with the independence of every person subject to its lawgiving. Accordingly, the juridical situation of a private person differs from that of government. Every private person has a right to independence, that is, to formulate his or her own purposes and pursue them with his or her own means, subject to the systematic constraint that each person respects the same right of all others. Unlike a private person, a government lacks the right to determine its own end. Government enters the world with a single obligatory end, the realization of a system of law that conforms to the terms of its own justification. While private persons may direct their means towards the fulfillment of their own self-determined ends, the publicly authoritative means of government do not exist apart from their obligatory end.14
Very interesting and recommended.
