Michael Foran - Profile on Academia.edu (original) (raw)
Papers by Michael Foran
Legality without Liberalism: The Rule of Law and the Environmental Emergency
Edinburgh Law Review
The rule of law is often said to be a liberal ideal, intrinsically associated with the enlightenm... more The rule of law is often said to be a liberal ideal, intrinsically associated with the enlightenment and, being necessary for each, supplying the link between liberalism and constitutionalism. In this paper, that idea is challenged. The rule of law, even in its most “formal” conception embraced by Lon Fuller, cannot be severed from an account of law which is thoroughly infused with moral purpose and value. The specific values which inform this principle are often portrayed as confined to action guidance, restraint of state power, and the protection of individual rights. Framed as such, the rule of law often conflicts with the moral and political obligation of political authority to preserve the conditions necessary for the community to survive and flourish. An alternative conception of the rule of law, rooted in the classical legal tradition, sees no conflict here and can thus provide the intellectual framework needed to explain how inaction on behalf of public authority can be as m...
Grounding Unlawful Discrimination
Social Science Research Network, Nov 7, 2021
This paper explores the necessary and jointly sufficient conditions for the recognition of a grou... more This paper explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework which can assist in enumerating new grounds through the open-ended ‘other status’ aspect of many legal frameworks. To that end, this paper argues that personal characteristics which are generally morally irrelevant, and which are socially salient in that they carry with them a prevalence of inequality-laden attitudes amount to necessary and jointly sufficient conditions for recognising a ground of unlawful discrimination. Other conditions such as immutability or the presence of relative group disadvantage will be assessed and dismissed as contingent but not necessary conditions
Legality Without Liberalism: The Rule of Law and the Environmental Emergency
SSRN Electronic Journal
A Great Forgetting: Common Law, Natural Law and the Human Rights Act
Hart Publishing eBooks, 2023
Citizenship as Civic Relationship: U.M. v Minister for Foreign Affairs and Trade [2022] IESC 25
SSRN Electronic Journal
Oxford Journal of Legal Studies, 2019
This article argues that anti-discrimination rights are individual rights to be free from wrongfu... more This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned with harm that is done to social groups or that laws prohibiting indirect discrimination seek to reduce or eliminate advantage gaps between social groups must be rejected as inaccurate. While principles of non-discrimination and principles of affirmative action often operate harmoniously to foster respect for the moral equality of persons, they each have a general affinity with distinct ethical traditions: deontology and teleology respectively. As such, we should conclude that indirect discrimination provisions are examples of formal and not substantive equality. Where rights to non-discrimination con...
On Defining Sex in Law
SSRN Electronic Journal
Equal Dignity and the Common Good
SSRN Electronic Journal
The Modern Law Review
Common good constitutionalism seeks to ground and legitimate choices of constitutional design and... more 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.
The Constitutional Foundations of Reasonableness Review: Artificial Reason and Wrongful Discrimination
Edinburgh Law Review
Judicial review of the executive faces a constant threat of constitutional illegitimacy. Historic... more Judicial review of the executive faces a constant threat of constitutional illegitimacy. Historically, this manifested in a conflict between the common law and the royal prerogative, with the judiciary needing to justify its authority to set legal limits on the powers of a divinely authorised monarch. This conflict has now transformed into a clash of political and legal conceptions of democratic governance: executive discretion to decide upon and efficiently pursue the common good conflicting with judicial enforcement of foundational constitutional norms designed to ensure that this pursuit is lawful. This article will look to the founding of the law of judicial review and the writings of Sir Edward Coke to illuminate some of the dark corners of the modern law of reasonableness review. Coke’s theory of the common law as a body of artificial reason will serve to place reasonableness review within its appropriate constitutional context, solidifying the connection between the rule of l...
The Cambridge Law Journal
Equality before the law is a foundational principle of the common law and is of particular import... more Equality before the law is a foundational principle of the common law and is of particular importance for administrative law, given the connection between judicial review and the rule of law. Analysis as to the precise requirements of this principle can help us better to understand the role that obligations to act consistently play within judicial review. This article will examine whether consistency ought to be classed as a separate ground of review and argue that this is unnecessary. Examination of the role that legal equality plays within common law reason generally will shed light on the role that it plays within administrative law in particular. Consistency is best conceived as a background principle, informed by the value of legal equality, housed within reasonableness review and not as a separate ground of review that could elide the distinction between review and appeal.
Rights, Common Good, and The Separation of Powers
SSRN Electronic Journal
Constitutionalism and the Common Good: On the Role of Unwritten Principles
SSRN Electronic Journal
The Constitutional Foundations of Reasonableness Review: Artificial Reason and Wrongful Discrimination
SSRN Electronic Journal
The Cornerstone of Our Law: Equality, Consistency, and Judicial Review
SSRN Electronic Journal
Shamima Begum, the separation of powers, and the common good
Against consistency as a ground of review
Book Review : Laws, The Constitutional Balance (Hart 2021)
Edinburgh Law Review, Aug 31, 2021
A Review of Sir John Laws, The Constitutional Balance (Hart 2021
Common Law and The Common Good
SSRN Electronic Journal
John Laws, The Constitutional Balance
Edinburgh Law Review, 2022
Legality without Liberalism: The Rule of Law and the Environmental Emergency
Edinburgh Law Review
The rule of law is often said to be a liberal ideal, intrinsically associated with the enlightenm... more The rule of law is often said to be a liberal ideal, intrinsically associated with the enlightenment and, being necessary for each, supplying the link between liberalism and constitutionalism. In this paper, that idea is challenged. The rule of law, even in its most “formal” conception embraced by Lon Fuller, cannot be severed from an account of law which is thoroughly infused with moral purpose and value. The specific values which inform this principle are often portrayed as confined to action guidance, restraint of state power, and the protection of individual rights. Framed as such, the rule of law often conflicts with the moral and political obligation of political authority to preserve the conditions necessary for the community to survive and flourish. An alternative conception of the rule of law, rooted in the classical legal tradition, sees no conflict here and can thus provide the intellectual framework needed to explain how inaction on behalf of public authority can be as m...
Grounding Unlawful Discrimination
Social Science Research Network, Nov 7, 2021
This paper explores the necessary and jointly sufficient conditions for the recognition of a grou... more This paper explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework which can assist in enumerating new grounds through the open-ended ‘other status’ aspect of many legal frameworks. To that end, this paper argues that personal characteristics which are generally morally irrelevant, and which are socially salient in that they carry with them a prevalence of inequality-laden attitudes amount to necessary and jointly sufficient conditions for recognising a ground of unlawful discrimination. Other conditions such as immutability or the presence of relative group disadvantage will be assessed and dismissed as contingent but not necessary conditions
Legality Without Liberalism: The Rule of Law and the Environmental Emergency
SSRN Electronic Journal
A Great Forgetting: Common Law, Natural Law and the Human Rights Act
Hart Publishing eBooks, 2023
Citizenship as Civic Relationship: U.M. v Minister for Foreign Affairs and Trade [2022] IESC 25
SSRN Electronic Journal
Oxford Journal of Legal Studies, 2019
This article argues that anti-discrimination rights are individual rights to be free from wrongfu... more This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned with harm that is done to social groups or that laws prohibiting indirect discrimination seek to reduce or eliminate advantage gaps between social groups must be rejected as inaccurate. While principles of non-discrimination and principles of affirmative action often operate harmoniously to foster respect for the moral equality of persons, they each have a general affinity with distinct ethical traditions: deontology and teleology respectively. As such, we should conclude that indirect discrimination provisions are examples of formal and not substantive equality. Where rights to non-discrimination con...
On Defining Sex in Law
SSRN Electronic Journal
Equal Dignity and the Common Good
SSRN Electronic Journal
The Modern Law Review
Common good constitutionalism seeks to ground and legitimate choices of constitutional design and... more 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.
The Constitutional Foundations of Reasonableness Review: Artificial Reason and Wrongful Discrimination
Edinburgh Law Review
Judicial review of the executive faces a constant threat of constitutional illegitimacy. Historic... more Judicial review of the executive faces a constant threat of constitutional illegitimacy. Historically, this manifested in a conflict between the common law and the royal prerogative, with the judiciary needing to justify its authority to set legal limits on the powers of a divinely authorised monarch. This conflict has now transformed into a clash of political and legal conceptions of democratic governance: executive discretion to decide upon and efficiently pursue the common good conflicting with judicial enforcement of foundational constitutional norms designed to ensure that this pursuit is lawful. This article will look to the founding of the law of judicial review and the writings of Sir Edward Coke to illuminate some of the dark corners of the modern law of reasonableness review. Coke’s theory of the common law as a body of artificial reason will serve to place reasonableness review within its appropriate constitutional context, solidifying the connection between the rule of l...
The Cambridge Law Journal
Equality before the law is a foundational principle of the common law and is of particular import... more Equality before the law is a foundational principle of the common law and is of particular importance for administrative law, given the connection between judicial review and the rule of law. Analysis as to the precise requirements of this principle can help us better to understand the role that obligations to act consistently play within judicial review. This article will examine whether consistency ought to be classed as a separate ground of review and argue that this is unnecessary. Examination of the role that legal equality plays within common law reason generally will shed light on the role that it plays within administrative law in particular. Consistency is best conceived as a background principle, informed by the value of legal equality, housed within reasonableness review and not as a separate ground of review that could elide the distinction between review and appeal.
Rights, Common Good, and The Separation of Powers
SSRN Electronic Journal
Constitutionalism and the Common Good: On the Role of Unwritten Principles
SSRN Electronic Journal
The Constitutional Foundations of Reasonableness Review: Artificial Reason and Wrongful Discrimination
SSRN Electronic Journal
The Cornerstone of Our Law: Equality, Consistency, and Judicial Review
SSRN Electronic Journal
Shamima Begum, the separation of powers, and the common good
Against consistency as a ground of review
Book Review : Laws, The Constitutional Balance (Hart 2021)
Edinburgh Law Review, Aug 31, 2021
A Review of Sir John Laws, The Constitutional Balance (Hart 2021
Common Law and The Common Good
SSRN Electronic Journal
John Laws, The Constitutional Balance
Edinburgh Law Review, 2022