Constitutional norms create an imagined world of law and political (leadership) order: a story spanning the gap between emotions, sentiments, and social order. Emotions and sentiments enable us to assess not only our physical environment and act accordingly, but also to vet our relationships with others, even to value our own thinking and conduct – that is, morality. This chapter demonstrates the role morality plays in constitutions and constitutional law. It lies at the heart of what we call natural law (pre-existing, prerequisites to law and constitutions), and the rules of recognition we use to decide whether law is actually and truly valid law. This natural law line of thinking is opposed to the positive law school of thought. The chapter ends with the question whether there is something like universal morality and whether constitutions are reflections of of basic morality.

This chapter deals with the relationship between the rule of recognition of a legal system and the material constitution. While the former concerns the ultimate criteria to identify the law, the material constitution points to those of such criteria (rules) that are supreme within a legal order. We contend that the material constitutions can be conceptualised as the ’original constitution’. Instead, we propose understanding it as a facet of the rule of recognition. Thus intended, this notion can help illuminate the complex interplay between written and unwritten constitutional rules. Moreover, after casting doubts on the idea of the material constitution as a descriptive device to detect the ordering forces within society, we sketch the contours of a material constitution based on a normative political conception of the rule of recognition. The normative presupposition of such a conception is a strong linkage between the individuation/acceptance of the law by laypeople and the existence of a given constitutional order. In virtue of such a strong linkage, the material constitution, as a legal notion, enjoys a specific normative legitimacy within a legal order. In pluralistic contemporary societies, such legitimacy hinges fundamentally on democratic/procedural principles rather than substantive goals.

Schauer discusses normative positivism, explaining that this type of positivism comes in two main versions, namely, in the shape of a prescription to legal actors and in the shape of a prescription to legal institutional designers. He argues that a full appreciation of the artefactual nature of law leads to the conclusion that a culture can modify its concept of law in order to make it as useful a concept as possible, and that if normative positivism is a plausible position, it follows not only that choosing a concept of law on moral grounds is a moral position but also that choosing to see the enterprise of legal theory in a normative way itself amounts to a normative position.

Leiter considers the relation between legal positivism and legal realism. He argues that H. L. A. Hart’s theory of law is really a species of legal realism, and that there are four ways in which this is so, namely, that the law operates primarily outside the courts; that the law is sometimes rationally indeterminate; that the law is explicable in wholly naturalistic terms; and that the law is not necessarily morally good. He also argues that Hart’s critique of American legal realism is misguided, because Hart would fail to distinguish clearly between conceptual legal realism, which is a theory about the nature of law according to which there are no legal rules and law consists in court decisions and predictions about them, and empirical legal realism, which is a claim about how it is useful for attorneys to think about law when they advise their clients and which says that it is a mistake to think that judges (and others) are bound by legal rules. As Leiter sees it, while conceptual rule-skepticism is indeed mistaken, the Americans do not embrace it, and while they do embrace empirical rule-skepticism, this type of rule-skepticism is justified.

Kramer explains how H. L. A. Hart reinvigorated legal positivism by disconnecting it from the command theory of law defended by his predecessors Bentham and Austin; by introducing through his own theory of law some new and fruitful concepts into legal thinking, such as the internal point of view, the distinction between primary and secondary rules, and the idea of a rule of recognition; by clarifying the meaning of and reasons behind the separability of law and morality through considering the many different ways in which law and morality are, or could be, connected; and by introducing the idea of the minimum content of natural law and clarifying the relation between this and the separability of law and morality. Kramer explains: even though a legal system can fulfil its basic function of securing the conditions of civilisation only if it includes rules prohibiting murder, assault, fraud, etc., the relevant protection provided by the legal system against such misconduct need not be extended to all groups of citizens. Consequently, because no true moral principles would permit this, Hart’s account does not reveal any necessary connections between those principles and legal norms.

This chapter investigates H.L.A. Hart’s characterization of law as the union of primary and secondary rules, and its implications for international law’s status as genuine law.While Hart is frequently identified as an international legal skeptic, that conclusion rests on a misreading of his analysis of international law or, in some cases, a misreading of his analysis of law.Hart does not deny that international law is law, only that it constitutes a legal system.Properly understood, this is a claim few of his critics will deny.