My aim in this Paper is to analyze Professor Richard Kay’s notion of ‘constituent authority’ within H. L. A. Hart’s model of foundations of legal systems. I thus elucidate the relationship between constituent power, Kay’s constituent authority, and Hartian rules of recognition. I begin by distinguishing two understandings of constituent power: de facto and de jure. In general, constituent power is a power to bring about constitutional change that is not a legal power and is not constituted by (grounded in) any legal power. On the first view, constituent power is a factual capacity (e.g. a kind of social “power”) to bring about constitutional change. On the second view, constituent power is a normative (e.g. moral) power to bring about constitutional change. I stress that anyone aiming to apply a normative conception of constituent power needs to grapple with the difficult questions in moral and political philosophy entailed by the necessity of choosing a normative framework.
I then introduce Professor Kay’s notion of “constituent authority,” which—unlike that of constituent power—can account for change of reasons that people have for acceptance of the authority of a constitution adopted at some point in the past. Elucidating Kay’s constituent authority, I argue that it is best understood as a kind of a normative social practice of acceptance of the authority of the makers of (1) an existing constitution or (2) a potential future constitution.
The remaining key definitional question about both constituent powers and constituent authority is: what kind of constitutional change results from an exercise of either kind of a power? Can constituent power (authority) bring about any constitutional change, or is there some definitional restriction? Without giving a definite answer, I show various possible answers to this dilemma. I also argue that one potentially attractive possibility, tying the definition of constituent power or constituent authority to changes of rules of recognition, should be rejected. It should be rejected because it leads to a concept which is likely to be both under- and overinclusive.
Finally, I discuss the possibility of lawful exercises of constituent power (and constituent authority). As I argue, it can even be that a constitutional change through a change of the rule of recognition is both, in a sense, a result of an exercise of a constituent power, and entirely lawful.
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 positive originalism.
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 ).
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 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?