Vol. 10 No. 12 (December 2000) pp. 646-648.

LEGAL THEORY IN THE CRUCIBLE OF CONSTITUTIONAL JUSTICE: A STUDY OF JUDGES AND POLITICAL MORALITY IN CANADA, IRELAND AND ITALY by Rory O'Connell. Burlington, VT: Ashgate Publishing Co., 2000. 338 pp. Cloth $104.95. ISBN: 0-7546-2097-2

Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University. E-mail: martinek@binghamton.edu.

The study of constitutional jurisprudence is the study of judicial interpretation of fundamental law. Presumably, nations enshrine their most basic values in their constitutional document. If this is the case, then courts charged with the responsibility of interpreting and applying the tenets of those foundational documents play an essential role in determining the practical scope of protections afforded individuals based on those abstract values. Rory O'Connell's concern in this book is to explore empirically the nature of constitutional decision making in the context of three liberal democracies - Canada, Ireland and Italy - and then derive a set of criteria that ought to guide such decision making.

O'Connell's main thesis is that the legal argument judges engage in for the resolution of cases brought before them is a variant of political moral reasoning. That is, judges implicitly or explicitly make reference not only to legal rules but also to moral arguments. In O'Connell's words, " . . . constitutional interpretation is an instance of a moral reconstruction of the legal sources available" (p. 261). In making this assertion, O'Connell is self-consciously trying to steer between what he terms the natural lawyers and the positivists. He characterizes the former as equating law with morality and the latter as disavowing any connection between the two.

After an introductory chapter that summarizes the main thesis, surveys relevant terms, and articulates the book's approach, O'Connell begins in earnest his argument to replace the positivist legal paradigm with a perspective on judicial decision making that recognizes the role of morality in the decisional mix. O'Connell addresses a series of positivist arguments, each in turn. For example, although a positivist may argue that there can be no connection between law and morality since there are unjust laws, O'Connell observes that connection and identity is not the same thing. Clearly, if law and morality were identical then it would be nonsensical to say that there are unjust laws. However, if judicial decision making is understood as interpreting laws such that they are the best that they can be, then there is room for the connection between law and morality as political moral argument contributes at least some criteria for interpretation.

O'Connell also addresses the positivist contention that the separation of law and morality is essential for clarity of discussion. He states that, "It is one thing to discuss whether something is a valid law, and another to discuss whether something is a just law. The question of validity is

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entirely separate from the question of justice" (p. 33). Although O'Connell agrees that validity and justice are not equivalent, he argues that neither are they disconnected from one another. Their connection lies in the fact that judges rely on criteria supplied by political moral argument to construct a justification for the legal system. However, the use of those criteria does not guarantee the legal argument constructed by the judge will be just.

This chapter-length discussion of the positivist arguments and O'Connell's response is an exercise intended to convince the reader that the positivist position is not unassailable. In doing so, the author is certainly thorough. However, despite later protestations to the contrary, O'Connell portrays positivist thinking too simplistically. For example, it is not really all that difficult to convince readers that, while a valid law is not necessarily the same thing as a just law, we commonly understand there to be some relationship between the validity and justice of a law. From here, the author goes on to articulate an intersubjective standard for political argument. O'Connell is engaging in meta-analysis; he is examining "how we argue about political morality rather than arguing for a political morality" (p. 45). He identifies a set of requirements he asserts are essential for a political theory, a set of criteria for rational intersubjective argument. O'Connell's goal is to identify those requirements and then go on to show how those requirements have been met or breached by constitutional adjudicators in the three countries he studies. These requirements are not singular in any way. Rather, as O'Connell notes, they are grounded in the writings of philosophers such as John Rawls and Carlos Santiago Nino. The nine criteria are: providing reasons for the claims made, interpreting norms to avoid contradictions among them, avoiding claims based solely on an individual's identity, offering generalizable reasons, being factually accurate, capable of solving problems, capable of being explained to others, fitting into our considered judgments, and at least minimally recognizing the principle of equality (or universalizability). O'Connell as the basis for subsequent rational argumentation offers them.

Disconcertingly, at this juncture O'Connell begins his three case studies. The shift from O'Connell's criteria for rational intersubjective argument to the case studies is abrupt, leaving the reader in question as to the relevance of the prior philosophical discussions to the case studies at hand. The author begins each case study with a brief but useful overview of the political system and the constitutional documents under consideration. The first case study is an exploration of the tension between principles of free expression and equality found in the Canadian Charter of Rights and Freedoms. He examines several freedom of expression cases decided by the Supreme Court of Canada, providing the background of each case and the reasoning offered by both majority and minority opinion writers. The second case study involves the treatment of sexual morality and privacy by the Supreme Court in Ireland. In particular, the cases O'Connell focuses on involve the use of contraceptives, abortion and the criminalization of homosexual intercourse. Finally, the third case study treats state-church relations in Italy as regulated by the Italian constitutional court. In each case, O'Connell offers a wealth of descriptive material. Indeed, he offers almost an excruciating amount of detail, a degree of detail unnecessary for his objectives, especially in the Canadian case study. It

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becomes distracting and often obscures the essential features of the opinions that O'Connell wishes to bring to the reader's attention.

The remaining portion of the book circles back to the earlier discussion of the criteria for rational intersubjective argument. O'Connell considers each of the earlier identified criteria (providing reasons, factual accuracy, etc.) in turn in the context of the case studies. He identifies instances in which the courts examined both did and did not meet these criteria. For example, O'Connell discusses a case disposed of by the Supreme Court in Ireland in which the majority relied on assertion that homosexual behavior is socially harmful without reference to factual evidence to that effect. O'Connell interprets the Court as violating the requirement of factual accuracy. On the other hand, he offers the Canadian case in which a secondary school teacher was convicted for violating a section of the criminal code by purposefully promoting hatred against an identifiable group, in this case Jews, as an instance of both the majority and the minority members of the Court abiding by the requirement of universalizability. The discussion throughout this section is, however, quite uneven. The book would have profited considerably from incorporating the relevant portions into the case studies. Doing so would have made the relevance of the case study details apparent rather than opaque and, further, would have gone a long way toward making the book more cohesive.

O'Connell's greatest contribution is in providing a glimpse into some quite interesting cases in Canada, Ireland and Italy. The work does not, however, offer something truly unique. In the end, although comparative studies of courts and judicial decision making in general is alluring for the promise it holds for thinking beyond any one cultural context, this book is an interesting -- but not a compelling addition -- to the comparative judicial studies literature or the broader literature on constitutional jurisprudence.