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Oxford Studies in Philosophy of Law$
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Leslie Green and Brian Leiter

Print publication date: 2011

Print ISBN-13: 9780199606443

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199606443.001.0001

Can There Be a Written Constitution?

Chapter:
(p.162) 5 Can There Be a Written Constitution?
Source:
Oxford Studies in Philosophy of Law
Author(s):

John Gardner

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199606443.003.0005

The existence of unwritten constitutions, such as that of the UK, strikes some as puzzling. However the existence of unwritten constitutions turns out to be easier to explain than the existence of written constitutions, such as that of the US. This chapter explores some tricky conceptual questions thrown up by written constitutions. The biggest of these is: What is a constitution? This chapter suggests (a) that a constitution is not only an important part of the law but also a set of extra‐legal political constraints; (b) that the fact that a constitution is written allows, and indeed requires, that the constitution also has a life in the case law and customary law of the system; (c) that what H.L.A. Hart called the rules of recognition of a legal system are not best regarded as part of its constitution, at any rate when the constitution is written. As the chapter goes on the criteria for regarding certain propositions of law as belonging to constitutional law (as opposed to administrative law or other parts of public law) are progressively refined. There is also discussion of some particular rules of constitutional amendment that apply in the UK and the US, which show the alleged differences between the two constitutions to be less radical than they are sometimes imagined to be.

Keywords:   constitution, comparative, rule of recognition, H.L.A. Hart, amendment, delegation, interpretation

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