mercoledì 28 agosto 2013

Originalism: A Critical Introduction

Keith E. Whittington 

Princeton University - Department of Politics

August 20, 2013

Fordham Law Review, Forthcoming 

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court and the Reagan administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This essay assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and points to the primary points of continuing separation between originalists and their critics.
Number of Pages in PDF File: 44
Keywords: originalism, constitutional interpretation, constitutional construction, judicial review, constitutional theory

Co-Creating European Union Citizenship: Institutional Process and Crescive Norms

Theodora Kostakopoulou 

University of Warwick - School of Law

August 27, 2013

Forthcoming in the Cambridge Yearbook of European Legal Studies, Vol. 15, 2014
Warwick School of Law Research Paper No. 2013-24 

By focusing on processual perspective and institutional change, EU citizenship emerges as a co-created institution. It is the product of institutional design and co-creation by actors at all levels of governance and is shaped by multilogues at the ‘top’, ‘bottom’ and ‘sideways’ as well as by citizens’ formal and informal actions. A co-creation perspective leads us to reconsider state-centered assumptions about which form of citizenship should be predominant and the dualism of centralism (supra-nationalism) versus ‘home-rule’ (inter-governmentalism) and to embrace a genuinely citizen-centered perspective. The article develops the co-creation paradigm, examines its dimensions, various forms and patterns and, by discussing the post-Rottmann and Zambrano case law (McCarthy, Dereci, Iida, O., S. and L. and Ymeraga) as well as Tsakouridis and P.I., sheds light onto the complex dynamics that make EU citizenship a vehicle of transformative institutional change but can also work against it.
Number of Pages in PDF File: 37
Keywords: European Union citizenship, institutional change, co-creation of realities, Court of Justice of the EU, judicial activism, citizenship rights, Rottmann, Zambrano, McCarthy, Dereci, Iida, O., S. and L. and Ymeraga, Tsakouridis, P.I.

European Union Citizenship Rights and Duties: Civil, Political and Social

Theodora Kostakopoulou 

University of Warwick - School of Law

August 27, 2013

Forthcoming in E. Isin and P. Neyers (eds.), Global Handbook of Citizenship Studies (London: Routledge, 2014)
Warwick School of Law Research Paper No. 2013-25 

The ‘market bias’ underpinning discussions about EU citizenship is quite puzzling. It may be difficult to find another category of persons, apart from EU citizens, for whom the personal and the professional do not overlap, since both constitute dimensions of the same life. Such economic determinism implies that: i) certain aspects of the self can have a separate existence thereby suggesting, and defending, a fragmentary self; and ii) freedom of movement can be separated from the sociality that accompanies one’s pre-border crossing status and his/her settlement in another Member State. In other words, it is not only a naïve economism that underpins the notion of ‘market citizenship', but also a methodological individualism since the term ‘market citizens’ necessarily centers our mind to ‘asocial citizens’ and ‘floaters’, that is, individuals willing to cross borders in order to maximize their economic self-interest. In what follows, I argue that these conceptions are misleading and misplaced for a number of reasons and that free movement of persons in the European Union cannot be thought of separately from its social, political and normative dimensions. If we are to understand what being an EU citizen means, we need to see individuals ‘in their fullness’ and not to focus on one aspect of their lives, namely, the economic one, prioritize this and then infer the rest. In addition, we must get a number of foci of inquiry into balance and to integrate the civil, political and social dimensions of EU citizenship, on the one hand, and rights and (future) duties, on the other. In this way, European Union citizenship emerges as an evolving whole of mutually interacting and interconnected parts and generative of new political realities and enriching associational bonds.
Number of Pages in PDF File: 21
Keywords: European Union citizenship, free movement, rights, Court of Justice of the European Union, sociality, equal treatment, citizenship rights, duties of EU citizenship

domenica 25 agosto 2013

Dyevre-Jakab (eds.), "Constitutional Reasoning", Special Issue GLJ

Table of contents:

Link to the full issue:

Treaty Textualism

Andrew Tutt 

Yale University - Law School

August 20, 2013

Yale Journal of International Law, Vol. 39, No. 2, 2014, Forthcoming 

In the immediate aftermath of the Supreme Court’s landmark 2008 ruling in Medellín v. Texas, critics attacked the Court’s holding as deeply inconsistent with the original understanding of treaty interpretation. Medellín, wrote one scholar, “cannot be reconciled with any identifiable version of originalism.”

This Article carefully reexamines the interrelationship between the late-eighteenth century law of nations, the framing and ratification of the federal Constitution, and the practices of the early Supreme Court. In uniting these threads, it reveals a link — patent and remarkable — between the late eighteenth century law of nations, the Constitution’s decision to vest treaty interpretation in the judiciary, and the methods of treaty interpretation employed by the Supreme Court in the early republic.

Textual treaty interpretation — Textualism in all but name — was thought to be a requirement of the law of nations at the time of the Constitution’s adoption. The Constitution’s Framers — who knew the law of nations’ interpretive rules — invested treaty interpretation in the judiciary for precisely this reason, designing the federal judiciary to allow independent and expert judges to interpret treaties textually even if that meant that such interpretations went against the interests of the United States. The Supreme Court, through the end of the Marshall era, did precisely as the Framers intended, holding to a muscular Textualism, citing often to interpretive rules embedded in the law of nations as it did so.

Ultimately, this historical reexamination uncovers a fascinating story about the interplay between interpretive expectations and constitutional and institutional design. The law of nation’s requirement that treaties be interpreted textually allowed the young United States the opportunity to bind its own hands and thereby obtain the credibility necessary to deal with European powers on equal footing. Vesting treaty interpretation in the judiciary meant the United States’ treaty commitments would be honored as a matter of positive law. But this strategy depended in no small measure on an ability to signal to other nations precisely how those treaties would be interpreted. The law of nations’ requirement that treaty interpretation be rule-bound and textual made the United States’ decision to invest treaty interpretation in the judiciary more than an illusory promise. It ensured other nations their commitments would be honored according to international maxims of interpretation well-settled and widely-known.

Number of Pages in PDF File: 92
Keywords: Medellin v. Texas, treaty interpretation, maxims of treaty interpretation, Textualism, the amiable Isabella, Ware v. Hylton, Miller v. The Resolution, Foster v. Neilson, self-execution, Vattel, Grotius, Pufendorf, Burlamaqui, Rutherforth, Bacon, Blackstone, originalism, original methods

The Brussels School of Jurisprudence, Global Law and the Competition of Normativities

Benoit Frydman 

Perelman Centre for Legal Philosophy; Sciences Po School of Law

June 1, 2013

The paper briefly presents the Brussels School of Jurisprudence (BSJ) and its pragmatic theory of Global Law. It summarizes the results of several researches carried out during the last fifteen years at the Perelman Centre in various fields of emerging global normativities. The papers argues that the current phase of globalization requires us to enlarge the province of jurisprudence. We should extend our analyses and critiques to other kinds of norms and normative devices that are complementing, sometimes replacing but more often competing with classic legal rules and institutions in the global environment.
Number of Pages in PDF File: 14
Keywords: Brussels School of Jurisprudence, Global Law, Globalization, Global Standards, Global Indicators, Global Governance

Free Movement and Labour Rights: Squaring the Circle?

Catherine Barnard 

University of Cambridge - Trinity College

August 12, 2013

University of Cambridge Faculty of Law Research Paper No. 23/2013 

When the Treaty of Rome was signed in 1957, its main focus was on creating a single market where free movement of goods, persons, services and capital could be ensured. It therefore regarded labour above all as a factor of production in respect of which the principle of free movement was to apply. The Treaty did contain a Title on Social Policy but its content was derisory. Subsequent Treaty amendments and the emergence of a body of secondary legislation helped to adjust this perspective on labour issues and developed what the Commission describes as the European Social Model.

However, that very social model is now under threat. The threat stems from a variety of sources: concerns about the rigidity of labour law has led to pressure for greater flexibility, the eurozone crisis has led to major reform of a number of national systems of labour law, and, for the purposes of this paper, the decisions of the Court of Justice in Viking and Laval. Against the backcloth of the eurozone crisis, the Court’s unwillingness to engage in a genuine balancing between the economic and social dimension of the EU, meant that these cases became totemic for the trade union movement of all that was bad about the EU. The Monti II proposal was intended to help address some of these problems; it was roundly rejected by the national legislatures and received the first yellow card under the new Lisbon procedure. The aim of this paper is to consider the various ways of addressing the problems generated by the decisions in Viking and Laval in the light of the Monti II proposal.

Number of Pages in PDF File: 28
Keywords: Treaty of Rome, Single Market, EU, European Union, European Social Model, Eurozone Crisis, Monti II, Lisbon, Viking, Laval

Glory in Machiavelli

David Owen 

University of Southampton


APSA 2013 Annual Meeting Paper 

This paper addresses the role of the concept of glory in Machiavelli's il Principe. It argues that love of glory serves as the pivot on which Machiavelli seeks to re-shape the ethical composition of his addressees and that it plays a crucial role in relation to the political education that Machiavelli's text aims to provide as an education in the conditions of realising world glory as an agent-specific trans-historical good. In doing so, it offers an argument concerning that relationship of il Principe to Machiavelli's own republican commitments as one in which the text of il Principe leads its reader-actor to an acknowledgement that the only secure way of achieving glory is through the foundation of a republic.
Number of Pages in PDF File: 21
Keywords: Machiavelli, the Prince, glory, rhetoric, humanism, republic

Constitutional Courts as Mediators: Generals, Judges, and Democracy in Latin America

Julio Rios-Figueroa 

CIDE - Department of Politics; Centro de Investigación y Docencia Económicas (CIDE)

August 18, 2013

The legacy of military interventions and authoritarism in Latin America has produced the unstable democracies that characterize the region. A distinctive feature of this legacy is the prevalence of uncertainty surrounding civil-military relations. Specifically, civilian and military leaders are uncertain about the appropriate degree of autonomy for the military under a democratic regime. Moreover, civilian governments are unsure about the military’s willingness to build and sustain the democratic regime, and the armed forces doubt to what extent civilian leaders are willing to build a strong army respecting its institutional sprit de corps. This paper argues that unbiased, accesible, and powerful constitutional courts can credibly provide relevant information to reduce the uncertainty sorrounding civil-military relations, thus promoting cooperation between them. When these conditions are not met, it is more likely that constitutional courts update or even expand an old jurisprudence of lack of accountability of the military. The argument is illustrated in the case of constitutional jurisprudence on the scope of military jurisdiction in Colombia from 1958 to 2010.
Number of Pages in PDF File: 45
Keywords: Constitutional Courts, Mediation, Civil-Military Relations, Regime Stability

Older Europeans and the European Court of Justice

Israel Doron 

University of Haifa - Department of Gerontology

August 23, 2013

Age and Ageing, 2013, 42: 604-608 

Background: the European Court of Justice (ECJ) is considered by many to be the most important judicial institution of the European Union today. Despite the potential importance and relevance of the ECJ rulings to the lives and rights of older Europeans, no research has attempted to analyse or to study the ECJ rulings in this field.

Objective: to describe the ECJ case-law in the field of elder rights.

Methods: using a computerised search of the ECJ database, between the years 1994 and 2010, 123 cases directly dealing with legal rights of older persons were analysed.

Results: on average, only 1–2% of the annual ECJ case-load addresses rights of older persons. Unlike the clear trend in the increase of the total ECJ case load, there was no similar trend of increase in the number of cases directly involving older persons’ rights. However, in the majority of the elder-rights cases, the ECJ decision was in support of the older person’s rights.

Conclusions: the ECJ can potentially serve as an important protector of rights of older Europeans, if and to the extent that these cases reach its jurisdiction.

Number of Pages in PDF File: 5
Keywords: European Court of Justice, ECJ, Elder Law, Geriatric Jurisprudence, Jurisprudential Gerontology, Older people

The EU Law on Auditing and the Role of Auditors in the Global Financial Crisis

Hatice Kubra Kandemir 

Durham University - Durham Law School

January 2013

International Journal of Disclosure and Governance, Vol. 10, pp. 213-233, 2013 

In September 2011, the EU Commissioner Michael Bernier explained that “there are weakness in the way the audit sector works today and the crisis highlighted them”. Such weaknesses were not detected for the first time: a few years earlier the problems of the audit sector emerged when Enron collapsed and the chicanery of its auditor Arthur Andersen was revealed to the markets. Since then, auditors and audit firms namely the Big Four have been the subject to the long standing debates not only in the academic world but also in a number of European law and regulations. This paper examines the role of auditors in the global financial crisis of 2008 and whether they actually failed in their role.
Number of Pages in PDF File: 40
Keywords: audit, ISA, Directive 2006/43/EC, Sarbanes-Oxley Act, financial crisis, Big Four

Religion and EU Institutions

Pasquale Annicchino 

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

August 22, 2013

Ecclesiastical Law Journal, 15, 3, 2013, pp. 326-331 

Comment to the decision of the European Ombudsman in his inquiry into complaint 2097/2011/RA against the European Commission dealing with the implementation of art. 17 of the Lisbon Treaty.
Number of Pages in PDF File: 6

Governance, Good Governance, Earth System Governance... and International Law

Susana Camargo Vieira 

Universidade de Itaúna, School of Law

August 22, 2013

Polish Yearbook of International Law, vol. 32 (2012), pp. 111-127 

This article is about concepts, circumstances, the impact of technology upon life, the emergence of new problems which bring new challenges to our peoples and our planet in our pursuit of sustainable development. New challenges call for new solutions and different ways of using already existing resources, tools and mechanisms. So we revisit and compare bibliography through time; recall the work (and product of) of several ILA International Committees on the subject and especially its New Delhi Declaration of Principles of International Law as Relating to Sustainable Development; turn to new initiatives, namely, the Earth System Governance Project and Future Earth. And conclude on the urgency of bridging “hard” and “social” sciences in the quest for these solutions, given the holistic character of the problem, if we expect them to be democratic and sustainable – bearing in mind, always, that politics creates and law consolidates.
Number of Pages in PDF File: 23
Keywords: sustainable development, ILA, International Law Association, principles of international law, Earth System Governance, governance

venerdì 16 agosto 2013

A Barren Effort? The Jurisprudence of the Inter-American Court of Human Rights on Jus Cogens

Ignacio Alvarez Rio 

Utrecht University School of Law

Diana Contreras-Garduño 

Netherlands Institute of Human Rights (SIM), Utrecht University

May 31, 2013

Haeck,Y., McGonigle, B., Burbano-Herrera, C., and Contreras-Garduno, D. (eds.), The Realization of Human Rights: When Theory Meets Practice: Studies in Honour of Leo Zwaak (Intersentia, Antwerp, 2013), Forthcoming 

Since its codification by the adoption of Article 53 of the Vienna Convention of the Law of Treaties, jus cogens norms have been shrouded by the absence of clarity in both the scope and content. Despite the International Court of Justice’s primary competence in defining jus cogens norms, this Court has been very reluctant in defining them, and it thus, has provided little aid to its understanding. Contrary to the International Court of Justice, the Inter-American Court of Human Rights, a regional human rights tribunal, has continuously expanded the content of jus cogens through its jurisprudence. Yet, wherein lies the competence for a regional human rights court to interpret the Vienna Convention and thereby identifying the highest norm in international law?
Number of Pages in PDF File: 32
Keywords: Jus cogens, Article 53 of the VCLT, Inter-American Court of Human Rights, International Court of Justice

Full text available at:

The ECJ's Judgments in Melloni and Åkerberg Fransson: Une Ménage à Trois Difficulté

Nikos Lavranos 

European University Institute (EUI)

August 13, 2013

European Law Reporter, No. 4, pp. 133-141, April 2013 

In both judgments (Melloni & Akerberg Fransson) the ECJ interprets the scope of application of the Charter of Fundamental Rights, in particular Articles 51 and 53 of the Charter in a very extensive way. The judgments establish the supremacy of the Charter of Fundamental Rights over national (constitutional) law and the ECHR, thereby positioning the ECJ as the Supreme Court of Fundamental Rights in Europe.
Number of Pages in PDF File: 13
Keywords: ECJ, ECHR, Charter of Fundamental Rights, constitional law, constitutional courts, supremacy

Between Supremacy and Submission: A Model of Collaborative Constitutionalism?

Eoin Carolan 

University College Dublin (UCD) - School of Law

July 1, 2013

The adoption by jurisdictions like Canada, Australia, the UK and New Zealand of relatively novel mechanisms for resolving disputes about rights has led to the development of several ostensibly novel models of constitutional adjudication.

The most high profile of these - notably Mark Tushnet's distinction between weak and strong-form review, and Stephen Gardbaum's Commonwealth model of constitutionalism - place emphasis, in particular, on the provision of a legislative power to override a judicial determination. It is argued, especially by Gardbaum, that this vesting of the final say in the legislature avoids the weaknesses of both political and legal constitutionalism and so represents a better alternative to traditional theories of legislative or judicial supremacy.

This paper argues that Gardbaum's claims are misconceived. Using examples from other jurisdictions, the paper suggests that the claimed novelty and hybridity of the model is based on a caricatured image of alternative approaches to constitutional adjudication. In particular, it is contended that the Commonwealth model's concentration on the idea of the 'final say' is misleading, illusory and gives rise to a false choice between extremes. The critical consideration in any system is not how the mechanisms are designed but how they actually operate.

In reality, the contingent and disaggregated nature of modern government means that it is unlikely that any institution will have the 'final say', in the sense of commanding the complete and permanent implementation of its intentions.

This, it is suggested, provides the basis for an alternative model of collaborative constitutionalism. This model proceeds from an acceptance of the contingent nature of institutional decision-making to suggest that institutions, like courts and legislatures, should therefore be regarded as engaged in the collaborative enterprise of constitutional governance. By freeing constitutional theory from the necessity to make a false choice between judicial or legislative supremacy, collaborative constitutionalism allows constitutional scholars to concentrate on more practically-important issues of institutional competence, respective expertise, protocols for inter-institutional engagement, and so on.

Number of Pages in PDF File: 34
Keywords: judicial review, democracy, Commonwealth constitutionalism, separation of powers, collaboration, collaborative constitutionalism

American Conspiracy Theories

Joseph E. Uscinski 

University of Miami

Joseph Parent 

University of Miami


APSA 2013 Annual Meeting Paper 

Why do people believe in conspiracy theories? We offer some conjectures, review the literature, and set the course for forthcoming research.
Number of Pages in PDF File: 42
Keywords: conspiracy theories, conspiracy, ideology

Economic Policy Coordination in the Economic and Monetary Union: From Maastricht via the SGP to the Fiscal Pact

Jørgen Birk Mortensen 

Copenhagen Economics

August 14, 2013

CEPS Working Document No. 381 

This paper first takes a step backwards with an attempt to situate the recent adoption of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union in the context of discussions on the Stability and Growth Pact (SGP) and the ‘Maastricht criteria’, as fixed in the Maastricht Treaty for membership in the Economic and Monetary Union (EMU) in a longer perspective of the sharing of competences for macroeconomic policy-making within the EU. It then presents the main features of the new so-called ‘Fiscal Compact’ and its relationship to the SGP and draws some conclusions as regards the importance and relevance of this new step in the process of economic policy coordination. It concludes that the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union does not seem to offer a definitive solution to the problem of finding the appropriate budgetary-monetary policy mix in EMU, which was already well identified in the Delors report in 1989 and regularly emphasised ever since and is now seriously aggravated due to the crisis in the eurozone. Furthermore, implementation of this Treaty may under certain circumstances contribute to an increase in the uncertainties as regards the distribution of the competences between the European Parliament and national parliaments and between the former and the Commission and the Council.
Number of Pages in PDF File: 23
Keywords: Economic Policy Coordination, Economic and Monetary Union, SGP , Fiscal Pact

domenica 11 agosto 2013

On Waldron's Critique of Raz on Human Rights

Joseph Raz 

University of Oxford - Faculty of Law; Columbia University - Law School

August 8, 2013

Prof. Waldron has recently published a paper criticising the views of Rawls and Raz on human rights. It is pointed out that some supposed criticism are nothing more than observations on conditions that any account of rights must meet, and that Waldron objections to Raz are due to misunderstanding his thesis and its theoretical goal. The short comment tries to clarify that goal.
Number of Pages in PDF File: 7
Keywords: Human Rights, Waldron, Sovereignty

The Latin American Model of Constitutional Jurisdiction: Amparo and Judicial Review

Axel Tschentscher 

Bern University - Law School

Caroline Lehner 

Bern University - Law School

July 19, 2013

There is a near-universal trend in Latin America countries to supplement their court organization by specialized constitutional courts similar to those established in Continental Europe. By simultaneously retaining their amparo procedure, the states of Latin America today achieve a unique combination of traditional and novel instruments within their constitutional jurisdiction.

In the tradition of Latin American states, the amparo procedure works as an extraordinary legal remedy against violations of constitutional rights by officials and government agencies. The procedure has been created after the pattern of the habeas corpus right in anglo-american law. Up to the present day, it therefore mainly serves as an instrument protecting the individual person concerned. The judgment is restricted to an inter partes-effect strictly to be distinguished from the erga omnes-effect achieved by comprehensive constitutional review.

The paper presents a two-thread analysis of the evolution of constitutional jurisdiction in Latin America. It strives for a comprehensive classification for all countries. Graphical timelines for the country groups with diffuse judicial review and with concentrated judicial review are provided.

We conclude that notwithstanding great variety in development and reform, a specific model of constitutional justice has emerged among the Latin American countries. The model establishes a mix of integrated and specialized constitutional jurisdiction. On the one hand constitutional controls limited to an individual case are allocated to the amparo proceedings. They are institutionally integrated, functionally diffuse and entail a inter partes-effect. On the other hand the constitutional controls intended to have an overall effect throughout the legal system tend to be assigned to a special constitutional court. These controls are institutionally specialized, functionally increasingly concentrated and they involve an erga omnes-effect. Within this burden sharing model the Latin American tradition of an integrated constitutional jurisdiction is preserved. At the same time the advantages of specialized constitutional jurisdiction are acknowledged. This Continental European model, implemented throughout Europe after the example of Austria, now has gained a strong impact in Latin America.

Number of Pages in PDF File: 30
Keywords: comparative law, constitutional law, judicial review, amparo, Argentina, Bolivia, Brazil, Costa Rica, Chile, Columbia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela

All is Changed, Changed Utterly? The Euro Crisis, the CJEU, and the Changing Nature of National Tax Sovereignty in the EU

Suzanne Kingston 


August 8, 2013

UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 08/2013 

This paper critically discusses the impact of the EU's response to the Eurocrisis, combined with recent jurisprudence of the Court of Justice of the EU, on the highly sensitive issue of national tax sovereignty within Europe.
Number of Pages in PDF File: 22
Keywords: Euro Crisis, CJEU, Changing Nature of National Tax Sovereignty in the EU

Originalism and Constitutional Construction

Lawrence B. Solum 

Georgetown University Law Center

August 7, 2013

Fordham Law Review, Forthcoming 

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decision of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the Nineteenth and Twentieth Centuries, marks the difference between these two activities.

This Article advances two central claims about constitutional construction. The first claim is that constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: because construction is the determination of legal effect, construction always occurs when the constitutional text is applied to a particular legal case or official decision. Although some constitutional theorists may prefer to use different terminology to mark the distinction between interpretation and construction, every constitutional theorist should embrace the distinction itself, and hence should agree that construction in the stipulated sense is ubiquitous.

The second claim is more substantive and practical. In some cases, construction can simply translate the plain meaning of the constitutional text into corresponding doctrines of constitutional law — we might call this "strict construction." But in other cases, the constitutional text does not provide determinate answers to constitutional questions. For example, the text may be vague or irreducibly ambiguous. We can call this domain of constitutional underdeterminacy "the construction zone." The second claim is that the construction zone is ineliminable: the actual text of the United States Constitution contains general, abstract, and vague provisions that require constitutional construction for their application to concrete constitutional cases. The second claim is (and should be) more controversial than the first; objections to the existence of the construction zone are considered and answered in this Article.

Part II of this Article situates the idea of constitutional construction in the context of contemporary debates about Originalism and among originalists. Part III investigates the interpretation-construction distinction and the terminology in which it is expressed. Part IV advances the two central claims of this Article: that construction is ubiquitous and the construction zone is ineliminable. Part V discusses the relationship between constitutional construction and debates about Originalism and Living Constitutionalism. Part VI concludes.

Number of Pages in PDF File: 78
Keywords: constitution, interpretation, construction, interpretation-construction distinction, vagueness, ambiguity, original methods, deference, constraint

Four Neglected Prescriptions of Hartian Legal Philosophy

Kevin Toh 

San Francisco State University

August 7, 2013

This paper seeks to uncover, delineate, and rationally reconstruct four theoretical prescriptions that H.L.A. Hart urged philosophers to observe and follow when investigating and theorizing about the nature of law. The four prescriptions may appear meager and insignificant when each is seen in isolation, but together as an interconnected package they have substantial implications. And they constitute a central part of Hart's campaign to put philosophical investigations into the nature of law onto a path to a genuine research program. The paper takes note of certain prevalent and robust trends in contemporary legal philosophy that detract its practitioners from the four prescriptions, and that have them revert to some of the older modes of thinking from which Hart sought a decisive break. A number of contemporary legal philosophers' views and commitments are taken up and assessed, and in particular those of John Gardner and Leslie Green.
Number of Pages in PDF File: 33
Keywords: H.L.A. Hart, context principle, internal legal statements, oblique analysis, presupposition, John Gardner, Leslie Green