Michael P. Foran (University of Glasgow) has posted Rights, Common Good, and The Separation of Powers (The Modern Law Review (Forthcoming)) on SSRN. Here is the abstract:
The classic natural law tradition is seeing a revival within constitutional theory. The emerging framework of common good constitutionalism seeks to ground and legitimate choices of constitutional design and interpretation in a manner committed to pursuing the flourishing of all members of the community. This raises important questions relating to the separation of powers and fundamental rights protection. This paper seeks to advance and defend an account of rights-based judicial review from within a common good constitutional framework. It will argue that rights and the common good are co-constitutive: a genuinely common good will ensure the protection of fundamental rights and genuinely fundamental rights will help constitute and further the common good. With this in mind, a conception of the separation of powers will be advanced wherein different organs of state act collaboratively to ensure both that fundamental rights are protected and that the state can pursue goals which help to further the common good. As a justificatory lens of constitutional theory, the common good has capacious room for different approaches to institutional design; what matters is that such questions are approached with the common good in mind as the ultimate end of any constitutional order.
Recommended.
