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² Loughlin, Martin, ‘What is Constitutionalisation?’ in Dobner, Petra and Loughlin, Martin (eds) The Twilight of Constitutionalism? (Oxford University Press, Oxford, 2010) 47.CrossRefGoogle Scholar

³ Though the actual terms ‘constitutionalisation’ and ‘rule of law’ are likely of roughly equal provenance, a fact of some significance since they come into to existence at a time of sustained effort to subject government to legal control, whether or not there is written constitution.

⁴ For an earlier exploration of these issues, see the essays in Alexander, Larry (ed), Constitutionalism: Philosophical Foundations (Cambridge University Press, Cambridge, 1998)Google Scholar, which contains an influential essay by Frank Michelman, ‘Constitutional Authorship’, 64.

⁵ Sieyès, Emmanuel Joseph, Political Writings, edited and translated by Sonenscher, Michael (Hackett, Indianapolis, IN, 2003) 92.Google Scholar

⁶ A written constitution can of course confine itself to setting out the division of powers in a federal system of government or combine such a division with a statement of entrenched rights but I will for simplicity’s sake assume for the most part that the relevant document is a bill of rights.

⁷ Posner, Eric and Vermeule, Adrian, The Executive Unbound: After the Madisonian Republic (Oxford University Press, New York, 2011).CrossRefGoogle Scholar

⁸ This is the main theme of Loughlin, Martin, Foundations of Public Law (Oxford University Press, Oxford, 2010).CrossRefGoogle Scholar

⁹ Seen from one perspective, the reach of the state increases as it seeks to control more of what might once have been regarded as properly in the private or social spheres of individual activity; with privatisation, the state’s influence over our lives grows as it becomes ever more ‘decentered’. For an excellent analysis of this phenomenon, see Harlow, Carol, ‘The “Hidden Paw” of the State and the Publicisation of Private Law’ in Dyzenhaus, David, Hunt, Murray, and Huscroft, Grant (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart Publishing, Oxford, 2009) 75Google Scholar. For the term ‘decentered’ state see 96–7. But, seen from another perspective, this extension of the state’s reach makes it, to use terms coined by Schmitt in 1933, quantitatively strong but qualitatively weak; Schmitt, Carl, ‘Weiterentwicklung der totalen Staats in Deutschland’ in Schmitt, , Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954 (Duncker & Humblot, Berlin, 1985) 359Google Scholar, 360–1.

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¹³ David Dyzenhaus, ‘The Question of Constituent Power’, in Loughlin and Walker (n 11) 129, 143–5.

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.

³⁰ Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty, translated by Schwab, George (Chicago University Press, Chicago, IL, 2005) 5.CrossRefGoogle Scholar

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³⁴ Schmitt, Carl, Constitutional Theory, edited and translated by Seitzer, Jeffrey (Duke University Press, Durham, NC, 2008) 71–2.CrossRefGoogle Scholar

³⁵ Ibid, 79–80.

³⁶ Ibid, 73–4.

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³⁹ Ibid, 717.

⁴⁰ Ibid.

⁴¹ Ibid, 720.

⁴² Ibid, 721.

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.

⁵⁴ Ibid, 760–1.

⁵⁵ For an illuminating discussion of similar ideas, see Eleftheriadis, Pavlos, ‘Law and Sovereignty’ (2010) 29 Law and Philosophy 5, 535–69.CrossRefGoogle Scholar

⁵⁶ See, for example, Ronald Dworkin (n 32) 16.

⁵⁷ Ibid, 81–3.

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

⁶⁰ Negative prescriptivism thus manifests itself in their accounts in a general thesis about there being no necessary connection between law and any set of moral values, but which is meant above all to demonstrate that there is no necessary connection between law and liberal morality.

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⁶² Ibid, 198.

⁶³ For discussions of some of the difficulties that arise, see Dworkin, Ronald, ‘Thirty Years On’ in Dworkin, , Justice in Robes (Belknap Press, Cambridge, MA, 2006) 187Google Scholar, 198–211. One criticism Dworkin makes of Raz is that there is something odd about the personification involved in saying that ‘the law claims …’. I will sidestep this issue because my interest in this essay is not so much the merits of Raz’s argument but its structure.

⁶⁴ Radbruch, Gustav, ‘Statutory Lawlessness and Supra-Statutory Law’, translated by Paulson, Bonnie Litschewski and Paulson, Stanley L (2006) 26 Oxford Journal of Legal Studies 1, 1–11.Google Scholar

⁶⁵ See (n 44) 88–91.

⁶⁶ See (n 44) chap. 5 and 6.

⁶⁷ Hart, HLA, Essays on Bentham: Jurisprudence and Political Philosophy (Clarendon Press, Oxford, 1982) 153–61.CrossRefGoogle Scholar

⁶⁸ I say ‘this kind’ because Hart always noted that law and morality necessarily share some vocabulary, obligation, duty, and so on. Indeed, this fact and others are now the basis for suggestions by a new generation of legal positivists that Hart did not support the positivist claim that there is no necessary connection in the way he specified between law and morality. They may be right that Hart despite himself could not maintain his distinction but why this would be considered a virtue of a model avowedly premised on the distinction is a little bewildering. Similarly, I am aware that a new generation of legal positivists created an ‘inclusive’ version of legal positivism, according to which moral standards incorporated by the positive law could be said legally to determine answers to questions about what the law requires and that Hart suggested in the Postscript to the second edition of The Concept of Law, 250–4, that he endorsed this version, rather than the ‘exclusive’ one propounded by Raz. But again I find it bewildering why a sense that a theory has to be adapted in a way that undermines its most fundamental commitments should be considered a sign of success rather than failure.

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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⁷² Austin, John, Lectures on Jurisprudence or The Philosophy of Positive Law (5th edn, John Murray, London, 1885, reproduced by Verlag Detlev Auvermann KG, Glashütten im Taunus, 1972), vol. 1, 245Google Scholar, his emphasis.

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

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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).

¹⁰⁵ Friedrich, Carl J, ‘Authority, Reason, and Discretion’ in Friedrich, (ed), Authority, Nomos I (Harvard University Press, Cambridge, MA, 1958) 28, 30.Google Scholar

¹⁰⁶ Ibid, 31.

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>.