The Road from Nowhere: Towards an Anti-Foundationalist Constitutional Theory

Abstract

What would an approach to constitutional theory grounded in morally sceptical philosophy look like? This is the core question underlying this thesis. The thesis seeks to pose some answers by first elaborating a form of moral scepticism – drawing on a linguistic anti-foundationalism inspired by the pragmatic, anti-metaphysical philosophy of Richard Rorty to set aside the idea of “objective moral truth” – and applying it to issues of constitutional theory. In drawing on the internal logic of the moral scepticism set out, with an effort to exclude as many external assumptions as possible, what results can be described as a sceptical contribution to constitutional theory.

The core conclusion is that morally sceptical, anti-foundationalist philosophy has significant and constructive contributions to make in this area. To demonstrate this, the thesis contributes to some of the most fundamental issues of constitutional theory: namely, the basis of legitimate collective decision-making authority; the potential limits to such authority; and the issue of entrenchment. The road to these contributions is wider than pure constitutional theory, however: the task at hand also requires this thesis to engage in detail with more fundamental issues of moral, political, and most prominently democratic, theory, thus laying out a sceptical take on these further topics in the process.

The results will be of interest to constitutional lawyers and philosophers alike. They will certainly come as a surprise to some, given the widely-held view of moral scepticism as an entirely destructive, debilitating, or otherwise dangerous philosophy. In a sense, then, this thesis can be seen as a counter to such negative pictures: in a climate where “post-truth” has become something of a dirty word, owing largely to recent outcomes in democratic politics, the positive and empowering contribution of this thesis, along with the robust defence of majoritarian democracy it offers, seems timely.