Reconciling the is/ought divide in constitutional theory

This paper focuses on the question about the normative or descriptive character of constitutional theory. A constitutional study is normativist when we ask what the roles of a constitution ought to be, we choose between different institutions and processes, and we evaluate how well they perform for guaranteeing (specific) values. Conversely, a descriptivist view rejects universalism and idealism in constitutional theory and looks for the existing constitutional practices. By means of British constitutional debates, I argue that both normativist and descriptivist approaches are necessary, but neither can satisfy the constitutional theory’s demands by itself. First, constitutional design is called to act in the real world, considering the circumstances of political societies where institutions are applied. Second, it is highly contested to say that a pure descriptive theory is possible. Then, a reconciliation in this divide is advisable. I present some ideas on how to conceive it.

On Legal Interpretation: nomos, violence and romantic constitution

Since it was first noted “nomos” has sneaked to the West world in order to keep order in the earth. However, its meaning is very unstable. Robert Cover and Carl Schmitt disagree in its employing. If we travel back in time to “polis, we would find out that Socrates wanted to define nomos as a sharing. Thus we could battle the arguments from the Sophists. How could nomos be linked to our modern time and be present in the legal interpretation? In my hunch, nomos has been occulted in the form of law. Law can only exist together with violence, claimed centuries ago the French philosopher Blasé Pascal. So to speak, every form of law, including the constitution, carries normative violence. This paper seeks to explain how the the romantic constitution cannot survive without violence, a violence which is presented in the legal interpretation, which warps the original meaning of nomos as sharing.

The problem of legalism: Lon Fuller’s critique of HLA Hart’s Rule of Recognition

An overlooked topic of the Hart-Fuller debate is Lon Fuller’s critique of HLA Hart’s rule of recognition. The core of Fuller’s critique is that Hart’s approach is “legalistic”. The aim of this paper is to revisit this critique, explain what Fuller understands by “legalism”, and argue that his claim has the potential of illuminating current discussions on a relevant dimension of judicialization of politics. Judicialization of politics involves both (i) the transfer of authoritative decisions of fundamental political questions and issues of public policy from the legislative to the judicial forum, as well as (ii) what some have called “the juridification of social life”. My claim is that this latter dimension is an instance of “legalism”. If so, and if judicialization of politics presents a challenge to contemporary constitutionalism, as some have argued, examining Fuller’s account will provide a fresh perspective to analyze the range and scope of that challenge.

Facing Up Fact Uncertainty: A Complexity in the Public Law Litigation Model

Oliver W. Holmes Jr. held that what matters in legal theorizing is what judges do in fact, not what judges should do in theory. The public law litigation model offers an example of this realist approach to judicial activity by illustrating how much of an unclear judicial behavior is given by fact uncertainty. I first identify the changing features of public law litigation. If traditional conceptions of adjudication see litigation as a bipolar, retrospective, self-contained, and parties-controlled mechanism, today’s public law litigation is a multipolar, prospective, expansive, and judge-controlled type of judicial adjudication. In discussing how these changing features impact on our comprehension of fact uncertainty, I focus on the contrast between legislative and adjudicative facts. Finding and evaluating facts are directly related to the normative construction of State’s duties of care. This consequence can be exemplified by uncertainty about facts in environmental law cases.

Fundamental rights as an aperture to the past: Dialogues between Ronald Dworkin and the post-colonial theory

The paper seeks an approximation between constitutional theory and postcolonial thought. It pursues elements for a legal hermeneutics that deals with the permanence of colonial violence. Fundamental rights in modernity are pictured, from Ronald Dworkin’s theory, as the gateway to morality and, consequently, to history within the legal system. The consequences of this relation between morality and law for the constitutional hermeneutics are debated. Second, the postcolonial is defined, as well as what contributions it can offer to displace the hegemonic narratives about modernity. Postcolonial and constitutionalism are then collated in the sense of providing elements for an expanded and more democratic moral imagination of fundamental rights. Going back to Dworkin, the conclusion addresses what kind of moral responsibility we have in writing the legal novel when unjust suffering and silenced struggles for freedom and equality are raised at the center of constitutional history.

What’s the point of the rule of law?

Section 1 characterises elements shared by most conventional accounts of the rule of law. Section 2 outlines five reasons not to start, still less to end, with them. The rest of the paper develops an alternative account. Section 3 suggests that we do better to start with consideration of the point, the telos of the rule of law, rather than with enumeration of purported elements, the anatomy, of it. Since the rule of law is typically seen as a response to a problem, often described as arbitrary power, the fourth section attempts to say what sort of a problem that is, and why it has so often been regarded as problematic. The fifth and sixth sections seek to explain why the metaphor of tempering power well captures some of the character of such a solution. Section seven sketches some expansive implications of that ideal. It suggests that it should be understood as an inherently social and political ideal, not merely an ideal for law.