Primitive Law for Grown Ups, or: How to Do Things With Constitutional Norms

Constitutional norms or conventions are usually thought of as what H.L.A Hart famously called “primitive law” (and, similarly, Bentham called “traditionary law” which, for him, is meant for “barbarians”). The reason for this seems clear: In contrast to law, constitutional norms and conventions lack “secondary rules” and an apparatus within which they can be institutionalized as they arise in a decentralized (often unexpected) fashion and are often not enforced by courts. In this paper, I challenge this view and argue that constitutional norms and conventions do in fact have “secondary rules” by which they are recognized, changed, and adjudicated. I further argue that the acknowledging this opens up previously unexplored possibilities about ways to assist in the creation and stabilization of constitutional conventions and norms or, conversely, in the process through which they are changed or eroded. The discussion has implications for outstanding debates about the resiliency of constitutional democracy which of late turned to emphasize the role of constitutional norms.