The global expansion of judicial power means that courts around the world are increasingly called on to settle matters of moral and political controversy, including assisted suicide, data privacy, anti-terrorism measures, marriage, and abortion.

But doubts regarding the institutional capacities of courts for deciding such questions are growing.

Paul Yowell’s new book, Constitutional Rights and Constitutional Design, argues that courts were not designed for the kind of moral and empirical reasoning they now routinely undertake. His book argues that in comparison to legislatures, the institutional capacities of courts are deficient. Legislatures are better equipped than courts for deliberating and decision-making in regard to the kinds of factual and moral issues that arise in constitutional rights cases.

To consider these questions and respond to the argument of the book, Policy Exchange’s Judicial Power Project has solicited commentary from leading scholars and jurists.  The commentary opens with an introductory post from Yowell.  We will publish Yowell’s reply shortly.


  1. Synopsis of Constitutional Rights and Constitutional Design | by Paul Yowell
  2. Constitutional Tradeoffs | by Adrian Vermeule
  3. Responsible Choices about Constitutional Design | by Professor Richard Ekins
  4. The Challenge of Integrating Theory and Practice| Professor Erin Delaney
  5. Institutional Incapacity and the Bounds of Judicial Power | Justice Malcolm Wallis
  6. Courts as a Forum for Reviewing Empirical Data and Moral Reasons | Judge Ioannis Sarmas