Global standards of Constitutional law : epistemology and methodology

Just as it led the philosophy of science to gravitate around scientific practice, the abandonment of all foundationalist aspirations has already begun making political philosophy into an attentive observer of the new ways in which constitutional law is practiced. Yet paradoxically, lawyers and legal scholars are not those who understand this the most clearly. Beyond analyzing the jurisprudence that has emerged from the expansion of constitutional justice, and taking into account the development of international and regional law, the ongoing globalization of constitutional law requires comparing the constitutional laws of individual nations. Following Waldron, the product of this new legal science can be considered as ius gentium. This legal science is not as well established as one might like to think. But it can be developed on the grounds of the practice that consists in ascertaining standards. As abstract types of best “practices” (and especially norms) of constitutional law from around the world, these are only a source of law in a substantive, not a formal, sense. They thus belong to what I should like to call a “second order legal positivity.” In this article I will undertake, both at a methodological and an epistemological level, the development of a model for ascertaining global standards of constitutional law

One Right Answer?: The Meta Edition

Legal philosophers concerned with the nature of law have focused much of their attention to the relationships between law and morality. Much less attention has been paid to the question of the relationship between law and politics. In this essay I examine this question by comparing the way the relationship between law and politics is understood in two legal systems usually thought to be fairly similar - the American and the British. I argue, first, that this relationship is understood in fundamentally different ways in the two legal systems; second, that this difference is reflected in the legal philosophers of (British) H.L.A. Hart and (American) Ronald Dworkin; and third and most important, that these differences pose a challenge to attempts to identify the nature of law through a priori conceptual analysis. This last point depends on showing that there are different prevailing understandings of politics, and that these different understandings of politics lead, through the interaction of law with politics, to different understandings of what law is. If, plausibly, there is no right answer to the question of the nature of politics, the link between law and politics suggests there is also no right answer to the question of the nature of law. I conclude, however, on a more positive note suggesting tentatively that there might be a different way of thinking about the nature of law: not through a priori reflection on law, but through a posteriori investigation of human nature and its potential implications for law