Ana Cannilla 'Morality and Political Constitutionalism'

On this occassion we will have the pleasure of welcoming Ana Cannilla. Dr Cannilla joined the University of Glasgow in 2021, having previously taught at the University of Reading. Ana’s research interests include constitutional law and theory, jurisprudence, and feminist philosophy. Please find below the an overview for her presentation:

Not every parliament is the parliament of Parliamentary Sovereignty. Or so I will argue. In doing so, I will (unsurprisingly) claim that not every law is the law of the Rule of Law, and that not every authority is the authority of the Authority of the Constitution. The story is not new; legal interpretivists have made similar kind of claims in sophisticated and persuading ways. They argue that law, including constitutional law, is an interpretative enterprise that requires the exercise of moral reasoning. It follows, then, that whatever sovereignty parliament has, whatever the law that should rule is, and whatever authority the constitution can claim, will rest on what follows from an exercise of reasoning within the realm of political morality. Of course, saying that answers to moral questions embedded in the law require moral reasoning doesn’t mean that judges have no other option but to engage in moral debates. As political constitutionalists tell us, when courts face moral questions they can always send the matter ‘back’ to the legislature. They also tell us that, in fact, it would be a good thing if the law was the kind of thing that can be identified without resort to moral reasoning.

In the paper, I claim that political constitutionalists are wrong to reject interpretivist accounts of the constitution. As I will attempt to show, thinking about the constitution in the interpretivist way, rather than in the dominant positivist manner, can help political constitutionalism defend the values it holds dear with more and better reasons and, contrary to what interpretivists tend to conclude, it will not require them buying into what they reject most: an ordinary power of courts to strike down legislation. In making the case for interpretivist political constitutionalism, I will argue that institutions, be that parliament or any other, such as friendship or marriage, are part of our constitutional or personal arrangements because we assume and demand they serve us, and not the other way around. This is not to say that institutions loose their legitimacy and authority when they fail to serve us, and hence that a different institution should immediately step in to do their job, as interpretivists are prone to conclude. But it does mean that without having the purpose to serve our moral interests, institutions have no claim to authority.