In ?Enduring Originalism,? Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and to originalist theory. However, the authors chose to present their account as a superior alternative to, or modification of, ?positive? (?original-law?) originalism of Stephen Sachs and William Baude. It is that aspect of the paper that I focus on in this short essay. Contrary to their strong claims in that direction, Professors Pojanowski and Walsh are far from establishing that positive originalism is deficient and that that their version of natural-law-based originalism offers a plausible alternative to positivist originalism. There is also a worry that, despite professing sympathy towards the ?positive turn? in originalism, ?Enduring Originalism? is at its core an account of what Professors Pojanowski and Walsh think the law should be, and not what the law is; precisely the kind of argument the positive turn militates against.
In several recent cases the Supreme Court has endorsed the idea that there are some general limits to incorporation of European Union law in the United Kingdom. The general limits stem from the Court?s interpretation of the European Communities Act 1972, the statute that grounds domestic effect of EU law, construed both in the light of ordinary canons of interpretation and in the light of fundamental principles. This raises the question what are the legal consequences when an EU measure violates one of those limits. In this paper, I propose an answer from the perspective of what a domestic court ought to do. My aim is to develop the legal position emerging from Assange, HS2, Pham, and Miller.
I argue that sometimes UK courts are under a duty not to apply EU law. However, the circumstances where this is the case are even more limited than the focus on the general limits of incorporation of EU law may suggest. In particular, fundamental principles of UK law may work to expand the scope of domestic effect of EU law. I want to stress that neither the cited cases, nor the present paper, take a position of hostility towards EU law. The following discussion makes it clear that both EU law and UK law have many devices to avoid conflict and those devices need to be exhausted before a court concludes that it is under a duty not to apply EU law.
In R. (Buckinghamshire CC) v Secretary of State for Transport
 UKSC 3;  1 W.L.R. 324 (HS2) the Supreme Court has
provided a good reason to think that the idea of a hierarchy of statutes
within the legal system of the United Kingdom is still alive, despite
the fact that some commentators have already heralded its early
demise (see e.g. Nicholas Bamforth, ?Same-sex partnerships: some
comparative constitutional lessons? (2007) E.H.R.L.R. 47 at 48). After
the famous passage in Thoburn v Sunderland City Council 
EWHC 195;  1 Q.B. 151 where Laws L.J. introduced the
distinction between ?constitutional? and ?ordinary? statutes (at
), there indeed seemed to be some reticence among their
Lordships to make use of this distinction and clarify its practical
import. Among others, Lord Bingham of Cornhill in Robinson v
Secretary of State for Northern Ireland  UKHL 32;  N.I.
390 at  and Lord Hope in H. v Lord Advocate  UKSC 24;
 1 A.C. 413 at  have suggested a special role for
constitutional statutes (respectively, being subject to a special mode
of interpretation and being immune from implied repeal), but voices
like those still remain isolated. In HS2 Lord Neuberger and Lord
Mance appear to have decided to contribute to changing that
situation by not only endorsing Laws L.J.?s distinction between two
types of statutes (HS2 at ), but also by hinting that constitutional
statutes and principles may be in some way entrenched against
change by later constitutional statutes (at ).
This article critically analyses the Supreme Court?s Miller judgment, taking
it as an opportunity to reflect on the true place of EU law in UK law and on the
right way to advance legal arguments on that point. It argues that the Miller
majority did not provide an adequate answer to two strong arguments
regarding interpretation of the European Communities Act 1972. Firstly, to the
argument from the time-gap between enactment of the ECA and the moment
Community law became directly effective in the UK. Secondly, to the argument
from the purpose of s. 1(3) ECA, showing that the 1972 Act was enacted on the
assumption of the orthodox dualist model.
How to distinguish law from non-legal but systematic and ruleguided
practices of legal officials? This issue features prominently in
the debate on ?positive originalism? in US constitutional law, and
in similar fundamental controversies in other legal orders. I take it
as a question about content and constitution of ultimate rules of
recognition. Legal philosophers have been too quick in dealing with
this problem. I argue that there is more space to claim that
non-officials have a constitutive relationship with the content of the
law, thus potentially providing a standard to distinguish legal and
non-legal practices of officials. However, to the extent officials play
a constitutive role in the law, what matters is their genuine
acceptance of ultimate rules of recognition. To show this, I develop
the concept of ACCEPTANCE of a social rule by specifying the
requirement of genuineness of acceptance and the role of mental
dispositions associated with acceptance.
The bulk of the legal literature that either builds on or criticizes Hayek
focuses on Hayek?s work specifically devoted to law, in particular to the rule
of law and to the common law. I aim to show that there is jurisprudentially
valuable insight to be gained by reflecting on Hayek?s other work. I provide
here a sketch of a synthesis of Hayek?s thought with the current standard
framework in general theory (philosophy) of law, that of H. L. A. Hart. I
begin by presenting the outlines of Hart?s model of the foundations of law
with the ultimaterule ofrecognition at itscore. Then,Iexploretwo Hayekian
themes which shed light on the foundations of law as understood by Hart.
First, I consider the rule of recognition as an implicit (unconscious) social
rule and a Hayekian spontaneous order. Second, I turn to Hayek?s discussion
of ?common opinion? on which every official practice of law relies and argue
that it should beseen ascomplimentary with Hart?s model. Finally, I provide
an illustration of how Hayekian insights can improve a Hartian account of
one of the topical debates in US constitutional law ? that of the merits of
Barczentewicz Mikolaj (2019) I am Not Your (Founding) Father,In: Albert Richard, Guruswamy Menaka, Basnyat Nishchal (eds.), Founding Moments in Constitutionalism
In this chapter, my focus is on an aspect of original constitutional founding
moments (events that bring about a new constitutional order): the question of who
made the constitution as law. Or, in other words, who was the legally authoritative
agent (or author) in the making of a constitution? This question, for better or
worse, plays a significant role in legal arguments about the legal content of some
codified constitutions. I take no position on how significant, if at all, founding
moments should be in constitutional law. I only offer a jurisprudential account of
who, among the potentially many participants of a founding moment, counts as
the legal authority who made the constitution (the constitution-maker).
Lawyers across the globe routinely talk about what the 'founding fathers' or
the 'framers' of their constitution (or a founding treaty) meant, expected, intended
and so on. The point of this chapter is that some of the founding fathers talk is
confused, because it refers to people who did not make the constitution. I dispel
the confusion through analysis of what it means to be an agent behind making a
constitution as law: what does it mean to be a constitution-maker?