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Constitutionalism in an old key: Legality and constituent power

Published online by Cambridge University Press:  06 June 2012

DAVID DYZENHAUS
DAVID DYZENHAUS*
Affiliation:
Faculty of Law/Department of Philosophy, University of Toronto, 78 Queen’s Park, Toronto, Canada, M5S 2C5
*
*Email: [email protected]
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Abstract

I argue that legal and constitutional theory should avoid the idea of constituent power. It is unhelpful in seeking to understand the authority of law and the place of written constitutions in such an understanding. In particular, it results in a deep ambivalence about whether authority is located within or without the legal order. That ambivalence also manifests itself within positivist legal theory, which explains the affinity between theories of constituent power and legal positivist accounts of authority. Legal theory should then focus on the question of law’s authority as one entirely internal to legal order, thus making the question of constituent power superfluous.

Keywords

constitutionalismrule of lawconstituent powerlegalityauthority
Type
Research Article
Information
Global Constitutionalism , Volume 1 , Issue 2 , July 2012 , pp. 229 - 260
Copyright
Copyright © Cambridge University Press 2012

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References

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14 Of course, this might just show that normative legal theory is either naïve or simply fails to understand what is special about a constitution’s claim to authority. See, for example, Somek’s remarks about my ‘The Question of Constituent Power’ (n 12) 478.

15 Dieter Grimm, ‘The Achievement of Constitutionalism’, in Dobner and Loughlin (n 10) 3, 3–4.

16 Ibid, 8. Grimm suggests there is but one idea.

17 Ibid, 10.

18 Ibid, 8–9.

19 Ibid, 9.

20 Ibid, 11.

21 Ibid, 12.

22 Ibid, 11.

23 Ibid, 12–13.

24 Ibid, 13 ff.

25 Ibid, 9.

26 Ibid.

27 Sieyès, ‘What is the Third Estate?’ 136–7, his emphasis.

28 Ibid, 137.

29 Ibid, 138.

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43 Ibid.

44 Here he quotes from the description of the ‘internal point of view’ of legal officials in HLA Hart, The Concept of Law (2nd edn, Clarendon Press, Oxford, 1994) 57.

45 Kay, (n 37) 721.

46 Ibid, 721–2, footnote omitted.

47 Ibid, 722.

48 Ibid, 738, his emphasis.

49 Ibid, 739, quoting from Schmitt, (n 34) 243.

50 Kay (n 37) 755.

51 Ibid, 756.

52 Ibid, 757.

53 Ibid, 760, his emphasis.

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57 Ibid, 81–3.

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59 As Dworkin put it in reference to Hart’s rule of recognition, ibid, 37.

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69 See Eleftheriadis, (n 55). I summarize in the next few paragraphs my argument in ‘Austin, Hobbes, and Dicey’, (2011) 24 Canadian Journal of Law and Jurisprudence 2, 411–40.Google Scholar

70 For detailed discussion, see Dyzenhaus, David, Hard Cases in Wicked Legal Systems: Pathologies of Legality (2nd edn, Oxford University Press, Oxford, 2010)Google Scholar, chap. 8 and 9. Consider in this regard the fact that for Raz it is of the essence of both law and of an authoritative directive that their content be identifiable without relying on moral argument. Hart somewhat reneged on this commitment when he appeared to join the inclusive legal positivists, but this move is akin to Austin perceiving the need to take into account the fact that in some legal orders the political sovereign is constrained by positive law. That is, at such points theories must succumb to evidence.

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73 Ibid, 245–7.

74 Ibid, 267.

75 Ibid, 246–7.

76 Here my account of Austin and the question of constituent power departs from that given in Eleftheriadis (n 55).

77 See (n 72) 245–6.

78 See (n 72) 268 and the note at that page.

79 See (n 72) 247–8. Austin also supposes that parliament could enact a law that would permit enforcement of the terms of the trust against parliament, that is, by judicial remedies. But then parliament could abrogate the law ‘without the direct consent of the electoral body’ and the electoral body could not ‘escape from that inconvenience, so long as its direct exercise of its sovereign or supreme powers was limited to the election of its representatives’. That in turn permits him to claim that he has demonstrated that there can be no legal limitation on sovereignty since parliament could at any time free itself of that limit by simply enacting another law.

80 See (n 72) 302.

81 See (n 72) 301.

82 See (n 72) 294–5.

83 See (n 44) 201, his emphasis.

84 See (n 44) 203.

85 Ibid.

86 However, Hart might well not have baulked at the suggestion of a common denominator similar to Austin’s claim of a general sense of the utility of government, no matter how bad, over the uncertainty that would follow the collapse of legal order, if there were no voluntary cooperation even amongst the minority of officials. Consider that his discussion of the ‘minimum content of natural law’ (n 44, 193–200, at 193) begins with the Hobbesian premise that people accept the terms of association with others at least to ensure survival.

87 For a recent discussion of Hart’s vacillations in this regard, see Wilkinson, Michael A., ‘Is Law Morally Risky? Alienation, Acceptance and Hart’s Concept of Law’, (2010) 30 Oxford Journal of Legal Studies 3, 441–66.CrossRefGoogle Scholar

88 For the application of this argument to constitutional authority, and thus for the claim that a constitution may get its authority from the fact that its makers had moral authority, see Joseph Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in Alexander (n 4) 152, 158–60.

89 See, for example, Hart (n 44) 206–12.

90 Dworkin, Ronald, Justice for Hedgehogs (Belknap Press, Cambridge, MA, 2011), 400–2.Google Scholar

91 Ibid, 403.

92 Ibid, 409.

93 Schmitt (n 30) 63–4. Hans Kelsen might be the exception here, a positivist who adopts a one-system picture, depending on how robust one takes his ‘principle of legality’ to be, an exercise that requires one to ignore much of what he officially had to say on this topic. Compare Dyzenhaus, David, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Clarendon Press, Oxford, 1997) 149–57Google Scholar with Vinx, Lars, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford University Press, Oxford, 2007)CrossRefGoogle Scholar, chap. 3.

94 Dworkin, Ronald, Taking Rights Seriously (Duckworth, London, 1977) 151.Google Scholar

95 These are to be found in chapters 14 and 15 of Thomas Hobbes, Leviathan; see Shapiro, Ian (ed) Leviathan (Yale University Press, New Haven, CT, 2010)Google Scholar. For discussion see Dyzenhaus, David, ‘Hobbes’s Constitutional Theory’, ibid, 453 and ‘How Hobbes met the ‘‘Hobbes Challenge”’ (2009) 72 Modern Law Review 3, 488–506.CrossRefGoogle Scholar

96 Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (MIT Press, Cambridge, MA, 1996) 39.Google Scholar

97 Hobbes (n 95) chap. 18, 108.

98 It is worth noting that Schmitt was well aware of this kind of train of thought, as he blamed Hobbes for setting in motion the events that resulted in the establishment of liberal democracy – The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol, translated by George Schwab (Greenwood Press, Westport, CT, 1996).

99 Dworkin (n 63) 23–4, his emphasis.

100 Dworkin (n 32) 25–6.

101 Ibid.

102 Consider, for example, that the category of legal subjects is much broader than the category of citizens, and that it is an assumption of the rule of law that general laws apply in the same way, with some clearly defined exceptions, to non-citizens as they do to citizens.

103 For the idea of project, see Dyzenhaus, David, The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press, Cambridge, 2006)CrossRefGoogle Scholar. For a recent discussion of the importance of not treating constitutionalism as something finished, as an achievement, see Zurn, Christopher F., ‘The Logic of Legitimacy: Bootstrapping Paradoxes of Constitutional Democracy’ (2010) 16 Legal Theory 3, 191–227.CrossRefGoogle Scholar

104 Grimm, ‘The Achievement of Constitutionalism’ 11 (n 10).

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107 Ibid, 35, emphasis removed. The quote within the quote is from Morton White in a seminar both Friedrich and White attended. Note that in his most recent work, Dworkin relies on an example of a controversy within a family about the children’s obligations in light of the family’s history to support his one-structure account – Dworkin (n 90) 407–9. For a rich account of moral obligation in terms of authority relations, see Darwall, Stephen, The Second-Person Standpoint: Morality, Respect, and Accountability (Harvard University Press, Cambridge, MA, 2006).Google Scholar

108 Schmitt (n 34) 131.

109 See Dworkin (n 90) 409–10. I take a large part of Jeremy Waldron’s work on the rule of law over the last few years to be along these lines. See Waldron, Jeremy, ‘The Concept and the Rule of Law’ (2008) 43 Georgia Law Review 1, 54–61Google Scholar and ‘Can There Be a Democratic Jurisprudence?’ at <http://ssrn.com/abstract=1280923>.