In Search of Foundations: Ethics and Metaethics in Constitutional Adjudication

Courts, no doubt, can get moral answers wrong, but can they also get morality itself wrong?This is the ambitious question asked by Boško Tripković in The Metaethics of Constitutional Adjudication (MeCA) (8).This book aims to elucidate the use of ethical or moral arguments 1 in constitutional reasoning by searching for their metaethical foundations.The first part identifies and analyses three ethical reasoning ideal-types from a comparative constitutional perspective.These ideal-types are arguments from constitutional identity (Chapter 2), common sentiment (Chapter 3) and universal reason (Chapter 4).In constitutional adjudication, these types of ethical argument are often construed as self-standing methods of ethical argument, as the book demonstrates with reference to several jurisdictions including the United States, South Africa and Israel.Tripković attempts to show how all three ideal-types lack a credible metaethical foundation.In the second part, Tripković develops his own metaethical theory, drawing particularly from evolutionary ethics.This theory is based on the contingency of our ethical beliefs, and locates the metaethical foundation of value in the interaction between confidence in our firmly held beliefs and our critical reflection upon them (Chapter 5).The final chapter applies this metaethical theory to constitutional adjudication to show how confidence and reflection can serve as a basis of a theory of constitutional ethics (Chapter 6).The book's approach is original and thought-provoking.Metaethics is likely to be unfamiliar ground for most lawyers, and may appear so abstract that its

Перевод пока недоступен