ABSTRACT
Constitutions are a vital part of many modern legal systems, yet constitutional adjudication is perhaps the most difficult area of law for a philosopher to describe and explain. As a focus for theoretical inquiry, constitutional law and its related norms raise difficult questions about the nature and purpose of legal theory in general. Such questions are also particularly relevant to the explanatory ambitions of legal positivists. Legal positivism is the currently dominant analytical theory of law, that is, the dominant legal theory of the type that attempts to explain what law is by identifying and describing the necessary features of every legal system, and by explaining those features through understanding their workings within a coherent whole. Applied to law, the analytical methodology maintains careful distinctions between the various types of norms within legal systems as well as those norms that are related to but not a part of such systems. The legal positivist Joseph Raz, for instance, defends a legal theory that enforces a fundamental distinction between legal norms and extra-legal norms; the existence of a legal norm in the proper sense, according to Raz, cannot depend on its moral content. But Raz’s claim seems to run contrary to the existence of moral-political rights as they are entrenched in constitutions: the Canadian Charter of Rights and Freedoms does not appear to establish the right to equality before and under the law as if it were a norm without moral substance, and the application of that norm to strike down existing governmental edicts is defended on an explicitly moral basis. As we shall see, other legal positivists have a more inclusive view of the relationship between the existence or validity of a legal norm and that norm’s content. But legal positivism in all its forms has come under heavy criticism from a variety of fronts. Positivism’s critics often bring examples from constitutional law to the forefront of their attacks, for it is that area of jurisprudential concern which most forcefully raises questions about the relation between norms generally conceived, including moral norms, and norms of a type that might be distinctly legal. Hence Giorgio Pino points out that for ‘many new “antipositivist” scholars … constitutional law is the main test in order to show how incapable legal positivism is of producing a suitable understanding of the structure and the essence of contemporary legal systems’.1
